Don't accept rides from strangers: the Supreme Court hastens the demise of passenger privacy in American automobiles.

• Author: Hewitt, Daniel J.
• Position: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

Wyoming v. Houghton, 119 S. Ct. 1297 (1999)

1. INTRODUCTION

   In Wyoming v. Houghton,(1) the United States Supreme Court held that a police officer who has probable cause to search a car may search any container within the car that might contain the object of the search, including the belongings of a passenger unsuspected of any criminal behavior. In so holding, the Court rejected the lower court's assertion that the personal effects of a passenger unsuspected of criminal activity are outside of the scope of a lawful automobile search.(2) The Court based its holding primarily on the notion that the common law existing during the framing of the Constitution would not have differentiated among items to be included in a valid search based upon ownership.(3) In addition, the Court believed that the need to protect the privacy interests of a passenger did not justify the excessive difficulties such protections would create for police officers in the field.(4)

   This Note reviews both the genesis and interpretation of the warrantless automobile search, as well as the other legal principles implicated in the search of a passenger's effects. This Note argues that the Court erred by condoning a search conducted without individualized suspicion, because the facts of this case did not meet the requirements of previously allowed suspicionless searches. This Note further argues that the Court's denial of any meaningful expectation of privacy for passengers is inconsistent with Fourth Amendment jurisprudence. Finally, this Note argues that the Court overstated the potential problems of the Wyoming Supreme Court's "passenger's property rule."(5) This Note concludes that the passenger's property rule offers a workable standard for police officers in the field, while adhering to the traditional notions of individualized suspicion and individual privacy.

2. BACKGROUND

   The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and ensures that "no Warrants shall issue, but upon probable cause."(6) While it would be a gross oversimplification to declare that there is any one purpose for the Amendment,(7) the Supreme Court has declared that the "basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by government officials."(8) When a government action is suspected of violating the Fourth Amendment, the Court will often peer back through history to see if the framers would have approved of an analogous action.(9) In addition (or often instead), the Court will evaluate the action's "reasonableness" by "balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."(10)

   1. INDIVIDUALIZED SUSPICION

      The phrase "individualized suspicion" does not appear in the text of the Fourth Amendment, but the concept--that the suspicion of criminal activity underlying a government intrusion into a person's privacy should be calibrated toward the actions of that person--has played a significant role in the development of search and seizure jurisprudence.(11) Indeed, Professor Thomas Clancy(12) has argued that individualized suspicion was an assumed element of a reasonable search or seizure at the time of the framing of the Constitution.(13) Professor Clancy explained,

      [G]iven the historical background, characterized by suspicionless searches and seizures pursuant to general warrants, the litigation and outcry concerning those abuses, the antecedent colonial constitutional efforts to prevent general warrants, the importance attached to the necessity of establishing individualized suspicion to issue a common-law search warrant, and the drafting process of the [Fourth] Amendment itself, it takes little deductive reasoning to conclude that a chief goal of the framers was to prevent the historical abuses associated with suspicionless searches and seizures predating the Amendment. The framers believed individualized suspicion to be an inherent component of the concept of reasonableness.(14) The Supreme Court has long considered individualized suspicion to be a threshold requirement for most permissible searches and seizures.(15) This requirement has endured throughout the twentieth century, even as the Court has lowered the level of suspicion needed to sustain the reasonableness of a search. First, when the Court created certain exceptions to the warrant requirement and permitted police officers in some circumstances to conduct warrantless searches based on probable cause, it reiterated that the lower standards were to be used only on an individual basis.(16) Second, in Terry v. Ohio,(17) when the Court held that a police officer could conduct a limited pat-down search of an individual with only reasonable suspicion to believe the person was armed, the Court reaffirmed the importance of specificity of suspicion. After outlining this new police power, the Court restricted this power strictly to "the individual whose suspicious behavior [the officer] is investigating at close range."(18)

      Despite the historical importance afforded the concept of individualized suspicion, it does not stand as an absolute prerequisite for a reasonable search or seizure.(19) In certain situations, the Court has ruled that "special needs, beyond the normal need for law enforcement"(20) will necessitate departure from the traditional requirement. To determine whether a particular search fits within this "closely guarded category of constitutionally permissible suspicionless searches,"(21) the Court will balance the private and public interests involved.(22) Specifically, the Court will decide whether this is one of the "limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion."(23)

      In the context of automobile searches and seizures, the Court has used this balancing test to approve suspicionless seizures at fixed border checkpoints(24) and sobriety checkpoints.(25) In United States v. Martinez-Fuerte, the Court assessed the constitutionality of briefly stopping a vehicle for questioning at fixed border checkpoints when there was no reason to believe the particular car contained illegal aliens.(26) The Court held that such seizures(27) do not violate the Fourth Amendment.(28) After detailing the extent of the problem of illegal immigration,(29) the Court found a brief vehicle stop followed by a border official's request that a motorist answer one or two questions or possibly produce a document relating to citizenship to be a minimal intrusion of privacy.(30) The stop at a fixed checkpoint is certainly less intrusive than the stops conducted by roving patrols, the Court reasoned, because the fixed stop would be less surprising, frightening, or annoying to drivers.(31) Furthermore, the fixed checkpoint stops are less susceptible to "discretionary enforcement activity."(32) Finally, the Court believed the procedure served a valid government interest.(33)

      In Michigan Department of State Police v. Sitz, the Court confronted the constitutionality of stopping vehicles at sobriety checkpoints.(34) After finding that such stops were "seizures,"(35) the Court held that they do not violate the Fourth Amendment.(36) In balancing the public and private interests involved in the case, the Court was influenced, first, by the extent of the problem of drunk driving and, thus, the state's interest in eradicating it.(37) Second, the Court condoned the "effectiveness" of this particular sobriety checkpoint, which it defined as "the extent to which this system can reasonably be said to advance [the interest of preventing drunken driving]."(38) Finally, the Court found the privacy intrusion of the brief stop involved to be "slight."(39)

      As may already be apparent from the Court's reasoning in Martinez-Fuerte and Sitz, the Court has allowed suspicionless police intrusions to proceed once it is satisfied that the searches are a necessary and effective means of addressing a compelling government interest. In such situations, the Court feels comfortable relying on "other safeguards ... to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field."(40) However, when the interest proffered by the police seems less than compelling, the Court will draw the line. Thus, in Delaware v. Prouse, where the stopping of motorists was not part of an organized sobriety dragnet or established border checkpoint but rather the random stopping of motorists to check the validity of their licenses and registration, the Court found the practice unreasonable.(41) In the Court's opinion, the stops were made in too arbitrary a fashion(42) and subject to the "standardless and unconstrained discretion" of the officers.(43) Without evidence to the efficacy of these random stops, the Court would not allow them.(44) In other words, the Court hinted that it might have looked more favorably upon the actions of the officers in Prouse if police statistics showed that unauthorized driving were a rampant, dangerous problem and random stops the cure. This is a farfetched scenario to be sure, but indicative of the Court's approach to the issue.

   2. EXPECTATION OF PRIVACY ANALYSIS

      Before a person can evoke the protections of the Fourth Amendment, he must demonstrate a reasonable expectation of privacy in the area or in the item unreasonably searched.(45) Proving that such an expectation exists is a two-step process.(46) First, the "person [must] have exhibited an actual (subjective) expectation of privacy," and, second, the expectation must "be one that society is prepared to...