Bright lines on the road: the Fourth Amendment, the automatic companion rule, the "automatic container" rule, and a new rule for drug- or firearm-related traffic stop companion searches incident to lawful arrest.

• Author: Glandon, Kevin Robert

INTRODUCTION I. CURRENT LAW, HISTORICAL DEVELOPMENT, AND UNRESOLVED QUESTIONS A. The State of the Law B. History & Development of the Fourth Amendment as It Applies to Automobiles 1. What is a Search? 2. Searches & Seizures: The Requirement of Reasonableness 3. When a Warrant is Not Required 4. Automobile Searches Under the Fourth Amendment C. Inconsistencies & Unresolved Questions II. PATCHING LEGAL POTHOLES IN THE AUTOMOBILE CONTEXT A. Automatic Companion Rule 1. Explaining the Rule 2. Basis of the Rule a. Safety of the Officer and the Public b. A Bright-Line Rule for Law Enforcement c. Common Sense d. Minimal Additional Intrusion 3. Criticism and Defense of the Rule a. It Relies upon Improper Guilt by Association b. It Fails to Require Individualized Suspicion B. Automatic Container Rule 1. Explaining the Rule 2. Basis of the Rule 3. Criticism and Defense of the Rule a. A Passenger's Belongings Cannot Be Searched If They Are Not Independently Subject to Search b. Permitting Warrantless Automobile Searches Is Inaccurate and Inefficient III. BRIDGING THE GAP: A "FIREARMS AND NARCOTICS PASSENGER SEARCH RULE" A. Explaining the Rule B. Basis of the Rule 1. Danger and Destruction 2. A Bright-Line Rule 3. Evidence-Gathering 4. Minimal Additional Intrusion C. Criticism and Defense of the Rule 1. A Search of a Passenger Ought to Require Probable Cause 2. This Rule Would Encourage Pretextual Stops CONCLUSION INTRODUCTION

For better or for worse, many courts and commentators agree: the Supreme Court has been moving away from contextualized, careful review of intrusions into the Fourth Amendment rights in automobiles. (1) Significant debate and disagreement has resulted in splits among the federal and state courts as to the appropriate limits of law enforcement searches of a passenger's person and belongings where the driver of a vehicle has been arrested and there is no reasonable suspicion that the passenger is involved in criminal activity.

The Supreme Court has carved out significant exceptions to Fourth Amendment warrant and probable cause requirements in the context of automobile searches. The full scope of enforcement authority to search an automobile and its passengers when the driver has been arrested remains uncertain. If an officer arrests the driver of a vehicle based upon either a firearm or drug charge, or finds either of those items during the course of the arrest, can the officer, without more, frisk the passengers for weapons? Can the officer, without more, search a bag that might contain a weapon or narcotics when it is being held by a passenger? Even if the answer to both of the previous questions is "yes," can the officer, without more, search the passengers?

Two state court cases present the Supreme Court with the opportunity to forge new bright-line rules in the dangerous context of roadside stops by providing law enforcement officers greater authority to search automobile passengers and their belongings subsequent to the arrest of the driver of the automobile. In Owens v. Commonwealth (2) and State v. Mercier, (3) traffic stops led to the arrest of a driver and to, respectively, a pat down of a passenger for weapons, and a search of belongings held by a passenger. Through Owens and Mercier, the Court could resolve the disagreement among the courts and support both the "automatic companion" line of reasoning extending from Terry v. Ohio (4) frisks and what one might call an "automatic container" (5) line of reasoning stemming from Wyoming v. Houghton. (6) Yet, while potentially providing a boon to law enforcement, the rules as described in Owens and Mercier might not go far enough. There is a gap between them: though the officer could search the passenger's belongings for weapons or evidence, and could pat down the passenger for concealed weapons, (7) he could not search the passenger for concealed evidence. In the dangerous setting of roadside stops, where the driver has been arrested and firearms or narcotics are involved, it is in society's interest both to protect the law enforcement officer and to avoid unnecessarily handicapping efforts to combat the drug trade.

This Note argues that Fourth Amendment law respecting automobile stop searches would be substantially clarified if differences among the courts were resolved in favor of the automatic companion rule and the "automatic container" rule. To do so, the Court should close the remaining gap between those two rules by adopting a third rule, which I have termed "the firearms and narcotics passenger search rule."

Part I outlines current law, as described by the Supreme Court, in the context of auto stop searches, discusses the historical development of Fourth Amendment law in the auto stop context, and identifies unresolved questions and inconsistencies in the law. In Part II, I propose resolving ambiguities in auto stop searches in favor of a clear bright-line rule by adopting the automatic companion rule of Owens, which allows officers to frisk companions of arrestees, and the automatic container rule of Mercier, which allows officers to search passengers' belongings where the officer is conducting a search of the vehicle incident to the lawful arrest of the driver. In Part III, I propose further closing the gap by joining and extending these two bright-line rules to create a single, easily applied "firearms and narcotics companion search rule." (8)

1. CURRENT LAW, HISTORICAL DEVELOPMENT, AND UNRESOLVED QUESTIONS

   To understand the reason why the adoption of the automatic companion rule, the automatic container rule, and the firearms and narcotics passenger search rule could provide useful clarity to Fourth Amendment law, this Note will first examine the baseline: the state of the settled case law in the auto stop context, which is addressed in Section A. Section B takes a more detailed look at the historical development of the rationales of relevant Fourth Amendment law and provides insight into what justifications might be used to support further developments.

   Section C identifies unresolved questions in the auto stop context.

   1. The State of the Law

      An officer may make a lawful traffic stop of a vehicle without a warrant. (9) Once the vehicle is stopped, assuming the occupants do not at any time consent to a search, the officer may still search the vehicle if immediately apparent contraband is visible from the outside. (10) If there is no contraband visible, the officer may search the vehicle if he has probable cause resulting, for example, from the odor of illegal drugs. (11) If the officer has no independent basis to search the vehicle, (12) but has probable cause to arrest the driver, (13) the officer may conduct a search incident to the lawful arrest (hereinafter "SILA") of the entire passenger compartment of the vehicle. (14) Such a search is not, however, permitted if the arrest is not "custodial"--that is, if the officer only writes a traffic ticket. (15) In order to conduct a search of the passenger compartment safely, the officer may order the driver to exit the vehicle. (16) The officer may also order the other occupants out of the vehicle. (17) If the officer has a reasonable suspicion that any passenger may be carrying a weapon, the officer may conduct a Terry stop-style frisk--a pat-down for weapons)s If the officer were to feel something he knew to be illegal narcotics during that frisk, it could be used as evidence in court. (19) The lawful search of the passenger compartment includes the search of any containers located therein. (20) This includes such personal containers as purses which are known to belong to, although not at the time being held by, the passengers, even when the officer has no independent reason to suspect the passengers of any wrongdoing. (21)

   2. History & Development of the Fourth Amendment as It Applies to Automobiles

      Before discussing further changes in Fourth Amendment law, this Note will briefly review the development of current law in the context of automobiles, with a particular focus on the rationales given. As a starting point, the Fourth Amendment 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. (22) The Fourth Amendment's two clauses, the Search and Seizure Clause and the Warrant Clause, have independent, albeit interrelated, force. Looking to the text of the Amendment, one would think searches and seizures of individuals and their possessions are permissible as long as they are reasonable and that warrants, if they are to be required, must conform to certain procedural necessities and must be supported by probable cause.

      Without additional guidance from the courts, the Search and Seizure Clause would appear to be governed by a rather loose standard of reasonability and the Warrant Clause, while more specific, is not obviously applicable in any given circumstance. Fortunately, guidance from the Supreme Court in the context of the Fourth Amendment has been perhaps less Delphic and more concretely helpful in defining rules and requirements than it has been in elucidating other concepts of constitutional law. (23) Of course, the same may not be as true regarding the Court's clarification of the proper underlying balance between the interests of law enforcement and privacy. (24) As a result, this Note looks to a multiplicity of Supreme Court decisions to determine where the law is now, but must look deeper to anticipate how that balance might be struck in the future.

      1. What is a Search?

         The Court has made clear that, as a threshold issue, the governmental action must be a search or a seizure for the Fourth Amendment to be implicated. (25) In the context of unconsented-to companion searches during...