Package bombs, footlockers, and laptops: what the disappearing Container Doctrine can tell us about the Fourth Amendment.

AuthorLee, Cynthia

    In October 2010, two packages mailed from Yemen and addressed to Jewish synagogues in Chicago were intercepted and found to contain explosive material. (1) One of the package bombs was found on a UPS plane that had stopped in England. (2) The other bomb, hidden inside a printer cartridge, was intercepted at a FedEx facility in Dubai. (3) Earlier in October, Farooque Ahmed, a naturalized U.S. citizen from Pakistan, was arrested for conspiring to blow up Metrorail stations in the Washington, D.C. area. (4) Unattended backpacks and duffel bags on city streets in Washington, D.C. lead to mass evacuations and street closures as authorities seek to make sure the seemingly abandoned containers do not contain explosives. (5)

    We live in a time of heightened security. After the September 11, 2001 attacks on the World Trade Center and the Pentagon, the 2004 train bombings in Madrid, Spain, the 2005 attacks on the London transit system, the 2008 bombing attacks in Mumbai, India, the attempted bombing of a Northwest Airlines flight from Amsterdam to Detroit by a Nigerian citizen with plastic explosives hidden in his underwear on December 25, 2009 (the attempted Christmas Day bombing), and the car bomb found in New York's Times Square in May 2010, the threat of another terrorist attack is a very real concern. The desire to give government officials the ability to prevent the loss of human life from such an attack is completely understandable.

    In light of valid security concerns, one might wonder why anyone should care about an almost forgotten doctrine that protects portable containers from warrantless governmental searches. In a series of cases in the 1970s, the Court announced, in a rule I call the Container Doctrine, that police officers with probable cause to believe contraband or evidence of a crime is within a container may seize the container, but cannot open and search it without first obtaining a warrant from a neutral, detached judicial officer. (6) Over the ensuing years, the Court has gradually eroded the Container Doctrine, allowing police officers to search portable containers without a warrant under a number of exceptions to the warrant requirement.

    In this Article, I demonstrate that the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued by a judicial officer. Studying the numerous ways in which the Court has undermined the Container Doctrine is useful for several reasons. First, the erosion of the Container Doctrine is emblematic of a more tectonic jurisprudential shift--the Court's movement away from the Warrant Preference view (the belief that the Fourth Amendment expresses a preference for warrants) (7) and its gradual embrace of the Separate Clauses (or Reasonableness) (8) view of the Fourth Amendment. Second, the Court's willingness to allow a growing number of container searches without warrants suggests judicial ambivalence about the effectiveness of warrant formalism. Third, the demise of the Container Doctrine, and its corresponding impact on the poor and homeless, reflects a troubling indifference to non-majoritarian interests.

    Why should we care about this erosion of Fourth Amendment protection for portable containers? We should care because portable containers, like houses, are repositories for highly personal and private effects. As some have argued, in protecting expectations of privacy, the Fourth Amendment protects a fight to "control over knowledge about oneself." (9) What we keep in our purses, wallets, briefcases, and suitcases can reveal a great deal about our lives. Government officials should not be able to search our effects without a good reason. Those of us who use laptops and smartphones should be concerned when the government starts equating laptops and cellphones with other portable containers that can be searched without a warrant, as it has at the international border. (10)

    This Article proceeds in four parts. In Part II, I examine the longstanding debate over whether the text of the Fourth Amendment expresses a preference for warrants or merely requires that searches and seizures be reasonable. For much of the twentieth century, the Supreme Court supported the Warrant Preference view of the Fourth Amendment-the view that the Fourth Amendment requires police to obtain a warrant before searching unless a clearly delineated exception to the warrant requirement applies. In the last ten to twenty years, however, an increasingly conservative Court has moved toward the Separate Clauses or Reasonableness view of the Fourth Amendment, the view that all the Fourth Amendment requires is reasonableness. (11)

    In Part III, I provide background on the Container Doctrine and discuss its rationales. Born during the 1970s in the heyday of the Warrant Preference view, the Container Doctrine reflects the understanding that it is preferable to have a neutral and detached judicial officer, rather than a police officer, make the probable cause determination. In requiring police officers to obtain a warrant before searching a container, the Container Doctrine not only reflected the Court's embrace of the Warrant Preference view, it also put portable containers used to carry personal effects on the same footing as private homes, which as a general rule cannot be searched without a warrant.

    In Part IV, I examine the myriad ways in which police can lawfully search a container without a warrant. Without formally abandoning the Container Doctrine except in the context of automobile searches, the Court has steadily eroded it by permitting police officers to search containers without a warrant under various exceptions to the warrant requirement. The Court's increasing willingness to tolerate warrantless searches of containers mirrors its gradual embrace of the Separate Clauses or Reasonableness view of the Fourth Amendment. The Court's path from warrant preference to reasonableness, however, has not been straight or smooth. The Court has flip-flopped over the years, at times embracing warrants and at other times embracing reasonableness. As recently as 2009, the Court expressed strong support for the Warrant Preference view. (12) Overall, however, the trajectory has been away from requiring warrants in favor of mere reasonableness review. This back-and-forth is also seen in the Court's container search cases.

    In Part V, I discuss why the movement away from warrants towards reasonableness in the container search context is problematic and what might be done about the situation. I argue that reasonableness review, as currently applied, tends to be too deferential to the government and wildly indeterminate. I also argue that dispensing with warrants for container searches disproportionately hurts the poor in general and poor communities of color in particular.

    To rectify these problems, I propose an additional layer of review in container search cases. When the government claims that a warrantless container search was justified by an exception to the warrant requirement, in addition to determining whether the requirements of the exception have been satisfied, the reviewing court must scrupulously evaluate the overall reasonableness of the search. Reasonableness review comports with the Fourth Amendment's command that searches and seizures not be unreasonable. The reasonableness review I propose, however, is not the run-of-the-mill, ultra-deferential reasonableness review that courts currently employ. Borrowing from a small slice of the Court's equal protection jurisprudence--its "rational basis with bite" cases--I propose that courts employ non-deferential, rigorous reasonableness review. In other words, I propose that reviewing courts employ reasonableness review with teeth. While I believe the Warrant Preference view of the Fourth Amendment is the view that most appropriately protects the right to be free from unreasonable searches and seizures, I realize that the current Court is unlikely to go back to a strong embrace of warrants anytime soon. (13) Therefore, even though I agree with much that critics of the Reasonableness approach have to say, I make my argument within the Separate Clauses framework in order to provide a pragmatic suggestion for protecting privacy interests in containers.


    The Fourth Amendment to the U.S. Constitution provides,

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (14) For years, legal scholars and Supreme Court Justices have debated the meaning of these words. Over time, two competing interpretations of the Fourth Amendment have emerged: (1) the Warrant Preference view, and (2) the Separate Clauses (or Reasonableness) view.


      Under the Warrant Preference view, police must obtain a warrant based upon probable cause before conducting a search unless an exception to the warrant requirement applies. (15) Proponents of the Warrant Preference see the two clauses within the Fourth Amendment as interconnected, one giving meaning to the other. (16) Thus, under this approach, whether a search is reasonable turns on whether police went to a judicial officer before the search to obtain a search warrant. Under the Warrant Preference view, a search warrant is generally required unless a specifically delineated exception to the warrant requirement applies. (17)

      Adherents of the Warrant Preference view emphasize the importance of having a neutral, detached judicial officer make the probable cause determination--the decision that there are...

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