Whittling away the search warrant requirement.

The Supreme Court has long claimed 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."(1) In fact, there are more than 20 of these exceptions, and they are hardly "well-delineated."(2)

Although there has never been a universal warrant requirement, the rule has been fairly rigorously applied to searches of structures. By contrast, with a single diminishing exception, the warrant requirement has disappeared for outdoor searches. This column explains how this has come to pass and discusses its implications for the law of the Fourth Amendment.(3)

While others may complain that this development severs a vital branch on the tree of liberty, I come to bury the warrant requirement, not to praise it.

It all started on a lonely road in rural Michigan in 1921 when federal prohibition agents stopped a car of suspected bootleggers, searched it, and discovered liquor hidden behind the upholstery.(4) The Supreme Court approved the warrantless search of the car based on probable cause, reasoning that it was "not practicable" to obtain a warrant because the vehicle could be "quickly moved"(5) Over the years, the Court has abandoned vehicle mobility as a prerequisite for warrantless searches, saying people have "lower expectations of privacy" in cars than they do in "structures."(6)

Thus, the "automobile exception" to the search warrant requirement was established. This exception, outlined by the Court in United States v. Ross, gives police with probable cause to suspect that a vehicle contains evidence of a crime the right to fully search the vehicle and any containers found inside. Officers may conduct the search without a warrant, regardless of whether the vehicle is readily mobile at the time of the search.(7) While this exception also applies to a recreational vehicle (RV) found in a parking lot,(8) the Court has indicated that an RV or trailer "elevated on blocks" and "connected to utilities" is likely still subject to the warrant requirement.(9)

Events on a different lonely road, this one in rural Wyoming, recently gave the Court another opportunity to affirm this doctrine. In Wyoming v. Houghton, police stopped a driver for a traffic violation.(10) They observed a hypodermic syringe in his shirt pocket, which he admitted he used for injecting drugs. They then searched the car for drugs, removing and searching a purse found in the back seat. The purse belonged to a passenger named Sandra Houghton. Narcotics were found in the purse, and Houghton was convicted of possession.

The Court, reversing the Wyoming Supreme Court, held that a warrantless Ross search of a car extends to all containers found in the car, whether they belong to the driver or a passenger. The majority did not dispute the Wyoming Supreme Court's conclusion that police lacked probable cause to believe that Houghton possessed drugs.(11) Rather, the Court was concerned that any attempt to distinguish containers found in the car based on ownership would complicate the search and encourage passengers to claim ownership of all containers in cars, impeding searches.

While Houghton reaffirms the automobile exception and extends its scope to the property of passengers, the decision does not address whether the passengers themselves would also be subject to a warrant* less search. The majority emphasized that it was not authorizing such a search in this case.(12) As concurring Justice Stephen Breyer said, the Court did not even decide what it would have done if Houghton had been wearing the purse.(13)

However, despite some halfhearted references by the dissent to the possibility of requiring a warrant to search passengers,(14) it seems clear that no warrant would have been required to search the passenger for contraband if "person-specific" probable cause had been present. As discussed below, probable cause to search, at least when narcotics are suspected, would also be probable cause for an arrest for which a warrant is clearly not required.(15)

In a parallel development to the auto search cases, the Court has significantly increased the scope of the search incident to arrest, another major exception to the search warrant requirement. In United States v. Robinson, the Court approved a full-body search of a defendant who was being taken into custody for driving with a revoked license (an offense for which there was no evidence to be found).(16) The search included the opening of a cigarette pack in the defendant's pocket that contained heroin.

While Robinson did not explicitly approve the opening of containers found on or near the suspect (the majority did not discuss the legitimacy of opening the cigarette pack), a later case did. In Illinois v. Lafayette, the Court approved a search of such containers at the station house assuming that Robinson had allowed these searches at the scene of the arrest.(17) It is now established that "any container or article in [the] possession" of an arrestee is subject to a full, warrantless search, whether at the scene of the arrest or at the station house.(18)

The Court then combined the automobile and search-incident-to-arrest exceptions to the search warrant requirement in New York v. Belton.(19) This decision held that when a person is arrested from an automobile, the passenger compartment of the car, including any containers found inside, can be searched "incident to the arrest" with no showing of cause beyond that required to arrest. This applies even if the suspect has been removed from the car and cannot get to it.(20)

The result of this line of cases is that a vehicle may be fully searched upon probable cause, and a person and his or her clothing may be searched incident to arrest, both without a warrant. Also, the passenger compartment of a car and containers found inside may be searched incident to arrest without either a warrant or probable cause.

Although containers may be searched incident to arrest, the Court has continued to maintain that if a person is walking down the street with a suitcase, backpack, purse, or other container and the police have probable cause to believe that it contains evidence but lack reason to arrest the person, they may only seize the container. They may not search it without a warrant.(21)

This doctrine created an anomaly. If the police could search an automobile, including containers found in it without a warrant, but they must get a warrant to search containers people carry on the street, what are officers to do when a person puts a container into an automobile? In the 1979 case of Arkansas v. Sanders, the Court decided that these containers would also be subject to the warrant requirement.(22)

This put the police in the awkward position of having to argue that they had probable cause to search an automobile but not probable cause to search a particular container. If their cause was "container specific," they would need to obtain a warrant. But if it wasn't, they were entitled to search the entire car and its containers without a warrant.

In 1991, in California v. Acevedo, the Court resolved this problem by overruling Sanders. The justices held that containers found in cars could be searched without a warrant, regardless of whether the probable cause was limited to the container or applied to the car as a whole.(23) (It was a similar desire to not require the police to distinguish among containers found in cars that motivated Houghton.)

Dilemma

But Acevedo created a new anomaly. How can a person lose Fourth Amendment protection by locking a suitcase in a car trunk? In Acevedo, the Court implied that the reason had to do with the mobility of the car. But mobility is irrelevant because, even under the Sanders regime, the police can seize the container on probable cause, thus immobilizing it. They just can't open it until they obtain a warrant.

And what of a person who puts a suitcase into the basket of a bicycle or on an airport luggage cart? Is the suitcase protected by the warrant requirement because conveying it this way is the equivalent of carrying it by hand? Or is the warrant protection lost because these conveyances are considered "vehicles"?

The only way to solve this dilemma is to hold that the warrant requirement doesn't apply at all to containers carried by people --whether by hand, car, bicycle, or water buffalo. Since, as noted above, objects carried by people can already be searched if they are arrested, a warrant is currently required only in the unusual case where the police have probable cause to believe a person is carrying evidence of a crime but lack probable cause to arrest the person. (A dog sniff of luggage is also permissible without probable cause or a warrant because it is not considered a "search."(24))

It seems likely that the next time the Court considers this issue, the justices will find containers searchable on probable cause alone. Houghton certainly shows a strong inclination in this direction, but it doesn't address the problem of handheld containers outside vehicles.

If, as predicted, the warrant requirement is abandoned regarding luggage and the like, what is left of it?

The answer, as to outdoor searches, is "nothing."(25) The most private repositories that people have outside of the buildings in which they live, work, or visit are their cars, suitcases or handbags, and their pockets. But the car, and anything in the car, are already subject to search on probable cause that evidence may be found, as are all of these containers on probable cause to arrest. Arrests outside and the searches incident to them do not require a warrant,(26) and searches of trash(27) and "open fields"(28) are not considered "searches" at all for Fourth Amendment purposes.

In contrast, the Court has been steadfast in its requirement of a search warrant to search not only a home but the yard, the outbuildings of a farm,(29) a hotel room,(30) a factory,(31) a warehouse,(32) and an office.(33) An arrest warrant is required to arrest a person at home,(34) and a search warrant is required to arrest a person at the home of another person.(35)

The best illustration of the Court's differing treatment of structures versus outdoors may be found in the different results of two very similar cases, United States v. Knotts(36) and United States v. Karo(37) Both cases involved the surreptitious installation of a "beeper" device in a drum of chemicals used to manufacture illegal drugs. The beeper would allow federal agents to ascertain the location of the drum.

In Knotts, the beeper was used to track the drum on the highway. The Court held that this was not a search under the Fourth Amendment. But in Karo, the beeper was used to determine whether the drum was still inside a house. Despite the fact that the device conveyed no information about the house beyond the presence of the drum, the Court not only deemed this a search but required a search warrant to use the beeper in this way.

An exception

Fourth Amendment aficionados may recall one case that does not seem to fit this indoor/outdoor dichotomy: Katz v. United States.(38) The Court held that in order to bug a phone booth from which a gambler was making a phone call police must obtain a search warrant. Indeed, by federal law, a stringent warrant requirement is imposed on all electronic eavesdropping. But these cases can be easily fit into the Court's formula either by observing that electronic interception is neither "indoor" nor "outdoor" in the ordinary sense or by including phone booths among the "structures" protected,(39) albeit only from electronic eavesdropping and not, presumably, from warrantless physical searches.

The bottom line, then, is that the Court has apparently unwittingly created a clear formula holding that absent exigent circumstances a warrant is always required for entry of a structure and almost never required for searches outside of structures except for the yard immediately surrounding the home.(40) The only living exception to this principle is the outmoded Chadwick/Sanders rule that containers carried by pedestrians, but not motorists or vehicle passengers, may only be opened with a warrant.

Instead of continuing to subject the warrant requirement to the death of a thousand cuts, the Court should forthrightly admit this dichotomy and move on.

Notes

(1.) California v. Acevedo, 500 U.S. 565, 580 (1991) (citing Katz v. United States, 389 U.S. 347, 357 (1967)).

(2.) For a list, see id. at 582 (Scalia, J., concurring) (citing Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1473-74 (1985)).

(3.) For a more detailed defense of the position taken in this article, see Craig M. Bradley, The Courts "Two Model" Approach to the Fourth Amendment: Carpe Diem! 84 J. CRIM. L. & CRIMINOLOGY 429 (1993).

(4.) Carroll v. United States, 267 U.S. 132, 136 (1925).

(5.) Id. at 153.

(6.) California v. Carney, 471 U.S. 386, 390-91 (1985).

(7.) United States v. Ross, 456 U.S. 798 (1982).

(8.) Carney, 471 U.S. 386.

(9.) Id. at 394 n.3.

(10.) No. 98-184, 1999 WL 181177 (U.S. Apr. 5, 1999).

(11.) Id. at *9 (cited by Stevens, J., dissenting).

(12.) Id. at*5 n.1.

(13.) Id. at *8 (Breyer, J., concurring).

(14.) "Whether or not the Fourth Amendment required a warrant to search Houghton's purse, at the very least the trooper had to have probable cause that her purse contained contraband." Id. at *9 (Stevens, J., dissenting) (citation omitted).

(15.) United States v. Watson, 423 U.S. 411 (1976).

(16.) 414 U.S. 218 (1973).

(17.) 462 U.S. 640 (1983).

(18.) Id. at 648. In fact, Lafayette made it clear that the station house search could go further and include the disrobing of the arrestee. Id. at 645.

(19.) 53 U.S. 454 (1981).

(20.) I have previously criticized Belton in these pages, but it was the "no probable cause" rather than the "no search warrant" aspect of the decision that I decried.

(21.) United States v. Chadwick, 433 U.S. 1 (1977).

(22.) 442 U.S. 753 (1979), overruled in part by Acevedo, 500 U.S. 565.

(23.) Acevedo, 500 U.S. 565.

(24.) United States v. Place, 462 U.S. 696 (1983).

(25.) Except for the yard of a house, which is governed by the protections that are afforded to the home, discussed below.

(26.) Watson, 423 U.S. 411.

(27.) California v. Greenwood, 486 U.S. 35 (1988).

(28.) Oliver v. United States, 466 U.S. 170 (1984). This was so despite the fact that the field was fenced and posted.

(29.) United States v. Dunn, 480 U.S. 294 (1987).

(30.) Stoner v. California, 376 U.S. 483 (1964).

(31). See Dow Chem. Co. v. United States, 476 U.S. 227 (1986), assuming that this was so but holding that aerial photography of the outside of the industrial complex was not a "search."

(32.) Murray v. United States, 487 U.S. 533 (1988).

(33.) O'Connor v. Ortega, 480 U.S. 709 (1987).

(34.) Payton v. New York, 445 U.S. 573 (1980).

(35.) Steagald v. United States, 451 U.S. 204 (1981).

(36.) 460 U.S. 276 (1983).

(37.) 468 U.S. 705 (1984).

(38.) 389 U.S. 347 (1967).

(39.) Mail interception is another type of search that doesn't fit neatly into the dichotomy and is subject to various restrictions, Fourth Amendment and otherwise. See United States v. Van Leeuwen, 397 U.S. 249 (1970).

(40.) The yard is unusual because it can, of course, be viewed by police from the public way, who may then have "exigent circumstances" to enter it to seize contraband. But absent exigent circumstances, police may not trespass on the yard without a warrant.

Craig M. Bradley, a former assistant U.S. attorney, is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington.