The Rights of the People (13 page)

Purely suspicionless stops, however, are allowed only if everyone gets stopped, as at a checkpoint, and only to investigate certain noncriminal matters. The Court has approved police roadblocks to check for drunken drivers,
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for illegal immigrants,
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and for invalid licenses and registrations,
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but not for drugs.
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The exception to these rules comes during “exigent circumstances” after a crime, when police can use checkpoints to capture an escaping car.

Then comes the question of what police can do once they make a stop. They can look through the windows, and if they see something illegal “in plain view,” such as a bag of crack or the handle of a gun, they have probable cause to search the vehicle. They can take a good whiff and if they smell marijuana, for example, they may search on that basis—“plain odor,”
²⁷
a variation of the “plain view” and “plain feel” concepts. They can even bring a drug-detecting dog to the scene, if they do so promptly.

In 2005, the Court ruled that a car stopped for speeding could be checked by a dog without probable cause, because that alone was not a “search” as long as it was done without delaying the motorist unduly. Roy I. Caballes had been pulled over for speeding by an Illinois state trooper, who was writing a warning ticket when another trooper arrived and walked his drug-sniffing dog around the car. The Illinois Supreme Court ruled that use of the dog converted a traffic stop into a drug investigation without justification. But the U.S. Supreme Court decided six to two that when the dog smelled drugs, probable cause was established for the trunk to be opened and searched and the marijuana found inside introduced as evidence.
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Since warrantless searches were based on the rationale that cars could be driven away, containers inside were another issue altogether. They could be held unopened while police obtained a judge’s signature, and so they enjoyed Fourth Amendment protection. That was the ruling in a 1977 case involving Joseph Chadwick, who was arrested by federal agents, after arriving by train in Boston, on a tip that his heavy, double-padlocked footlocker was leaking talcum powder, often used to neutralize the smell of marijuana. Meeting the train, narcotics agents brought in a dog, which signaled the presence of drugs in the footlocker. They waited until Chadwick claimed his chest, put it in the trunk of his car, and drove off. When they stopped him and seized his car, they did not bother with a search warrant, but ninety minutes later simply opened the footlocker. It contained marijuana, which the Court excluded as evidence, declaring, in the opinion by Chief Justice Warren Burger, “No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause.”

The original intent of the framers rested on a principle that transcended the circumstances of their time, Burger decided. They had neither limited the warrant requirement to the home nor explicitly applied it “in public places,” he wrote, “because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial
America. Thus, silence in the historical record tells us little about the Framers’ attitude toward application of the Warrant Clause to the search of respondent’s footlocker. What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.”
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The Court brightened this clear line between a vehicle and its containers in 1979,
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and again in 1981,
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excluding evidence in warrantless searches of suitcases and bags inside cars. But the following year, the Court began to dim the line and finally erased it altogether. First, in
United States v. Ross
, the justices ruled in favor of Washington, D.C., police officers who received a call from an informant about a dealer selling drugs from the trunk of his car, searched the vehicle, and, without getting a warrant, opened a paper bag containing heroin. The search of the bag was deemed a logical part of the search of the vehicle. “Contraband goods rarely are strewn across the trunk or floor of a car,” Justice John Paul Stevens wrote for the majority. “Since by their very nature such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some form of container.”
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By inference, this set up a contradiction: A container could be searched without a warrant if there was probable cause to search the vehicle, but if the probable cause applied to the container only, a warrant was still required.

Then, in 1985, the Court went a step further in
United States v. Johns
by extending warrantless searches to packages that had been seized from a vehicle three days earlier. Federal agents had spotted two pickup trucks driving to an Arizona airstrip fifty miles from the Mexican border, and had seen two small planes land and then take off again. Agents approached the trucks and arrested the alleged smugglers. They later claimed to have smelled the odor of marijuana coming from taped packages wrapped in dark green plastic, so they seized the vehicles and the packages, and took them to headquarters in Tucson. The agents never applied for a search warrant, and when they finally opened the packages, they found pot. Seven justices reasoned that since, under
Ross
three years earlier, the agents could have done a warrantless search when the packages were first seized, they could do so after three days.
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With that decision, the rationale of mobility did a vanishing act. A vehicle could be driven away, but a package in the hands of drug-enforcement agents could not. “There is simply no justification for departing from the Fourth Amendment warrant requirement under the circumstances of this
case,” Justice William J. Brennan, Jr., wrote in dissent. “No exigency precluded reasonable efforts to obtain a warrant prior to the search of the packages in the warehouse.”

The succession of rulings had incrementally expanded the warrantless search, in steps deceptively small, until it had spread far beyond its original logic. This case was only slightly different from the last, the scope of this search only slightly broader than the one before, and so principles were nibbled away under the guise of pragmatism and common sense. Yet the result for a time was confusion in police departments and lower courts about how far warrantless searches of automobiles could go.

To end the uncertainty, the final restriction on searching containers disappeared in 1991, when
California v. Acevedo
removed all distinctions between a vehicle and the bags, boxes, and suitcases within. Police knew that marijuana had been delivered to an apartment, so when they saw Charles Steven Acevedo take a paper bag from the dwelling to the trunk of his car, they had probable cause to search the bag—but not the vehicle itself. The Court ruled that no warrant was required to search the bag, and the marijuana discovered inside was admissible into evidence. It was surely no comfort to Acevedo that the Court accompanied its decision with this ringing declaration: “It [is] a cardinal principle 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.”
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In adding this exception, the Court was solving a problem that it had created in
Ross
, namely, the separate rules that governed container searches depending on whether the container alone, versus the entire vehicle, was the target. “Until today,” Justice Harry A. Blackmun wrote in the majority opinion, “this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences.”
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But in adopting “one clear-cut rule to govern automobile searches,” the Court now legalized its basic error. Gone was the notion that the police should be exempted from getting a warrant only when the evidence could be removed. Gone was the expectation of privacy in one’s luggage, so forcefully defined by Burger in
United States v. Chadwick
, just fourteen years before. The justices, so focused on giving law enforcement the license of simplicity, let slip away the principle of checks and balances
that requires the police to be overseen by a neutral magistrate in the intrusive act of searching through personal possessions.

“The Fourth Amendment is a restraint on Executive power,” wrote Stevens, now dissenting in
Acevedo
. “The Amendment constitutes the Framers’ direct constitutional response to the unreasonable law enforcement practices employed by agents of the British Crown.” And then he pointed to a new paradox created by the majority’s ruling: “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. One’s privacy interest in one’s luggage can certainly not be diminished by one’s removing it from a public thoroughfare and placing it—out of sight—in a privately owned vehicle.”
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If a policeman wants to search your car without your consent, and he can’t justify reasonable suspicion that it contains a weapon or probable cause that it contains drugs, he can use another legal approach. If he actually arrests you and takes you into custody for a traffic offense and then impounds your car, he may inventory the contents of your vehicle, as well as your pockets.
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For many years, until the Supreme Court refined the rules in 2009, he could usually search even without impounding. The tactic has turned a good many traffic stops into narcotics cases.

In 1987, the Court found that Colorado police arresting a drunk driver and impounding his van could search a backpack as part of their normal routine of conducting an inventory of the vehicle’s contents. The list is ostensibly made to protect against pilferage—protection that became this driver’s undoing: His backpack contained drugs, cocaine paraphernalia, and a large amount of cash.
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In a similar case three years later, Brennan in dissent warned of “a prime danger of insufficiently regulated inventory searches: Police may use the excuse of an ‘inventory search’ as a pretext for broad searches of vehicles and their contents.”
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The Court drew a limit in 1998, unanimously declaring unconstitutional an Iowa law allowing police to do a full search of a vehicle when issuing only a traffic ticket without an arrest. No arrest, no search, the justices declared. Patrick Knowles, pulled over for speeding, could have been taken into custody under state law, but the trooper chose to write a citation and then performed a warrantless search of the vehicle—unconstitutionally, the justices decided. The marijuana and “pot pipe” that the officer discovered were suppressed as evidence, and the drug conviction was overturned. If the trooper had used his prerogative to lock
Knowles up for speeding, then the search would have been legal, the evidence admissible.
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Three years later, the Court expressly allowed just such arrests for misdemeanors that carried maximum penalties of nothing more than small fines. As a result, if you’re driving along in Texas, for instance, and you commit an infraction punishable by no prison time, you can be taken to jail for up to forty-eight hours, and your vehicle impounded and thoroughly searched.
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It was a close decision, five to four, with Justice David Souter writing for the majority and Justice Sandra Day O’Connor for the dissenters. The case involved Gail Atwater, who was driving her children home from soccer practice in the Texas town of Lago Vista when one of their beloved toys flew out the window. She turned her pickup truck around, retraced her route at fifteen miles an hour, and unbuckled the seat belts so the kids—Mac, three, and Anya, five—could peer out the windows and help in the search.

Driving without a seat belt was a misdemeanor carrying a fine of twenty-five to fifty dollars, and no imprisonment, but Texas law gave a police officer discretion either to write a ticket or arrest an offender. The officer who pulled Atwater over, Bart Turek, took the harder approach. Three months earlier he had stopped her because he thought Mac wasn’t wearing a seat belt, but saw when he approached the car that, in fact, the boy was strapped in, albeit unsafely on an armrest. He gave Atwater a warning.

This time, according to the court record, Turek immediately started yelling at the mother, and when she asked him to lower his voice because he was scaring the children, he poked his finger in her face, saying, ‘You’re going to jail!’ ” Then, when she couldn’t produce her license and insurance card because her purse had been stolen the previous day, Turek replied, “I’ve heard that story two hundred times.”

In a sharp dissent, O’Connor recounted what followed: “Atwater asked if she could at least take her children to a friend’s house down the street before going to the police station. But Turek—who had just castigated Atwater for not caring for her children—refused and said he would take the children into custody as well. Only the intervention of neighborhood children who had witnessed the scene and summoned one of Atwater’s friends saved the children from being hauled to jail with their mother.” He handcuffed her and took her in a squad car to the police station. “Ironically,” O’Connor noted, “Turek did not secure Atwater in a seat belt
for the drive.” She was put in a cell for an hour, until a magistrate released her on bond.

Mac, her three-year-old, was so traumatized that “after the incident,” O’Connor wrote, “he had to see a child psychologist regularly, who reported that the boy ‘felt very guilty that he couldn’t stop this horrible thing … he was powerless to help his mother or sister.’ Both of Atwater’s children are now terrified at the sight of any police car. According to Atwater, the arrest ‘just never leaves us. It’s a conversation we have every other day, once a week, and it’s—it raises its head constantly in our lives.’ ”