§ 13.05 SPECIAL PROBLEM: SEARCH OF CONTAINERS FOUND IN CARS
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§ 13.05. Special Problem: Search of Containers Found in Cars48
[A] Clarification of the Issue
[1] In General
The "car cases" generally involve the issue of whether the police may search an automobile without a warrant, assuming they have probable cause for the inspection. But suppose that the officers come upon a container, e.g., a suitcase, briefcase, or paper bag, during the car search. May they open it without a warrant? Or, suppose that the police are validly searching the car (without a warrant) looking for a particular container that they have reason to believe contains contraband. If they find it, may they open that container without a warrant? These questions are considered here.
[2] What is a "Container"?
For current purposes, a "container" is "any object capable of holding another object."49
Containers are not all alike. Some containers are inexpensive, such as a simple paper bag, whereas others are expensive, such as an executive's attache case. Furthermore, people protect the contents of containers in different ways. One person with a paper bag might fold it closed, and still another might staple it shut; luggage might be unlocked, locked, or even double-locked.
Given these distinctions, the Supreme Court could have developed myriad Fourth Amendment "container" rules. Instead, it has chosen the opposite approach: Observing that "[w]hat one person may put into a suitcase, another may put into a paper bag,"50 the Supreme Court has ruled that, with one significant exception, all containers will be treated alike for Fourth Amendment purposes. That is, whatever rules regarding warrants apply — they are discussed below — the Court will not treat some containers as more deserving of protection than others.
The exception to this statement is that the Fourth Amendment does not provide full protection for containers which "by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance."51 The Court's examples of such containers are a kit of burglar's tools and a gun case. In essence, if the contents of a container are in literal plain view because the container is open or transparent, a person cannot possess a reasonable expectation of privacy as to the observation of its contents. Likewise, contents are in figurative plain view if the container's "distinctive configuration . . . proclaims its contents."52 Perhaps, as well—the Court has left the issue open53—one may not possess a reasonable expectation of privacy in a container the contents of which can be determined by its distinctive odor.
[B] General Rule
The rule, which did not come easily to the Court, is that containers — even ones belonging to a passenger of an automobile who is not suspected of criminal activity54— may be searched without a warrant during an otherwise lawful "automobile exception" search.55 And, if the container may be searched at the scene, it may also be seized and searched without a warrant shortly thereafter, at the police station.56
This rule applies in either of two general circumstances. First, as part of a valid warrantless car search, the police may unforeseeably come across a container. If so, they may open it without a warrant, assuming (as always57) that the container is large enough to hold the criminal evidence for which the police are searching. In these circumstances, the existence of probable cause to search the car serves to justify the warrantless container search, even though the officer conducting the search lacks information regarding that particular container.
Second, the police may have probable cause to believe that a particular container holding criminal evidence will be found in a car. In such circumstances, the police may conduct a warrantless search of the car for the container (per the automobile exception), and then open the container, also without a warrant.
On the other hand, absent exigent circumstances, consent, or as part of a search incident to arrest, the police may not open a container found outside a motor vehicle without obtaining a search warrant.
[C] How the Container Rules Developed
[1] United States v. Chadwick
In United States v. Chadwick,58 Amtrak officials observed two persons load an unusually heavy footlocker onto a train. One of the suspects fit a profile used to spot drug traffickers, and the footlocker was leaking talcum powder, a substance often used to mask the odor of illegal narcotics. The railroad employees transmitted this information to federal narcotics agents.
The agents put the suspects under surveillance when they got off the train two days later. Although the agents did not have a warrant, they came with a dog trained to detect marijuana. While the footlocker was sitting on the floor in the train station, the dog signaled the presence of an illegal narcotic inside. The agents then watched as C and two other persons lifted the double-locked footlocker into the trunk of a car. While the trunk was still open, and before the engine was started, the officers arrested the three persons, seized the footlocker, transported it to their headquarters, and there searched it 90 minutes later, still without a warrant.
At the trial court level, the government sought to justify the warrantless conduct on various grounds, including the automobile exception.59 The trial court rejected this claim, because it "saw the relationship between the footlocker and [ C's] automobile as merely coincidental." Presumably, the court meant by this that the police had probable cause to search the container before it was placed in the vehicle; moreover, the footlocker was seized only seconds after its placement in the car, before the engine was started. On appeal to the Supreme Court, the government abandoned this argument.
In the Supreme Court, the government offered two justifications for the warrantless search. First, in an argument that the dissent characterized as "extreme," the government asserted that the Fourth Amendment Warrant Clause "protects only interests traditionally identified with the home." Drawing on the history of the Fourth Amendment, and the framers' concern about writs of assistance and general warrants,60 the government argued that "only homes, offices, and private communications implicate interests which lie at the core of the Fourth Amendment." Therefore, since the footlocker was seized outside a home or office, it could be opened without a warrant, if the search was supported by probable cause.
The Court, per Chief Justice Burger, rejected this argument. Although general warrants and writs of assistance "deeply concerned the colonists" and were "foremost in the minds of the Framers, . . . it would be a mistake to conclude . . . that the Warrant Clause was therefore intended to guard only against intrusions into the home." The Chief Justice observed that the Warrant Clause does not distinguish between searches in private homes and elsewhere, and that the initial clause of the Fourth Amendment draws no distinctions among "persons, houses, papers, and effects" in barring unreasonable search and seizures. In essence, the container and its contents are "effects"; they are textually entitled to as much Fourth Amendment protection as persons, houses, and papers.
Beyond the textual and historical arguments, the Court noted that "we do not write from a clean slate." Quoting Katz v. United States,61 it stated that the Fourth Amendment "protects people, not places." Therefore, it is wrong to assume that people are protected only in their homes. "Accordingly," the Chief Justice stated, "we have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings." He also reasserted the traditional policy argument for warrants, stating that it is "far more likely that [a search] will not exceed proper bounds when it is done pursuant to a judicial authorization."
The government had a second, less broad, explanation for the warrantless search of the footlocker. Although it did not reassert the automobile exception, it used the "car search" cases to argue that "luggage is...
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