The Evaporation Point: State v. Sykes and the Erosion of the Fourth Amendment Through the Search-Incident-to-Arrest Exception

• Author: Kelly A. Deters
• Position: J.D. Candidate, The University of Iowa College of Law, 2007
• Pages: 1903-1927

J.D. Candidate, The University of Iowa College of Law, 2007; B.A., Northwestern University, 2004. I would like to thank my parents and my husband, Tony, for their tireless support and excellent proofreading skills.

Page 1903

I Introduction

Many people consider arbitrary governmental searches without warrants or justification to be a part of U.S. history. Law enforcement officers' ability to search people's properties arbitrarily and without judicial oversight in the form of a search warrant was a major grievance of American colonists and a contributing factor to the American Revolution.¹ Early Americans revolted against a government that abused its discretion and invaded their private lives.² In response, the Framers created the Fourth Amendment to guard against "unreasonable searches and seizures."³

More than 200 years after the adoption of the Constitution, Americans again face excessive governmental discretion that endangers their privacy and security. The Supreme Court has long allowed an exception to the Fourth Amendment's search-warrant requirement for searches incident to arrest.⁴ The Supreme Court definitively established the scope of these searches in Chimel v. California.⁵ In Chimel, the Court created a limited exception and justified it with legitimate rationales.⁶ Since Chimel, however, the Supreme Court and lower courts have expanded police authority to conduct searches incident to arrest, divorcing that authority from its justifications.⁷

This Note examines the Wisconsin Supreme Court's expansion of the search-incident-to-arrest exception in State v. Sykes.⁸ In Sykes, the police conducted a search when they had probable cause to arrest the defendant but had no intention of actually arresting him.⁹ The police then charged the defendant with an unrelated offense based on evidence found during the search.¹⁰ The court found that the search fell within the search-incident-to-arrest exception and gave little attention to the limitations on the permissible scope of a search incident to arrest that the Supreme Court hadPage 1904 clearly set-and repeatedly reaffirmed-in Chimel.¹¹ The court also disregarded the critical importance of an arrest or inevitable arrest as the triggering event creating the exigency that justifies an exception to the warrant requirement.¹² The Sykes court set a dangerous precedent by judging the validity of the search based on the court's view of reasonable police behavior rather than on the Fourth Amendment. In doing so, the Sykes court created an exception so broad that it swallows the warrant requirement, authorizing the kind of exploratory searches and unchecked law enforcement discretion that the Framers designed the Fourth Amendment to prevent.¹³

Part II of this Note examines the historical context and purposes of the Fourth Amendment. Part III analyzes the modern search-incident-to-arrest doctrine, established by the Supreme Court in Chimel. Part IV traces the expansion of searches incident to arrest in Supreme Court jurisprudence and in the Wisconsin courts before Sykes and examines the remaining limits on police authority. Part V analyzes Sykes and concludes that the decision takes an important and erroneous departure from Fourth Amendment jurisprudence and history.

II The Historical Context and Purposes of the Fourth Amendment

A The Response to Lack of Judicial Oversight

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."¹⁴ The text of the Amendment does not define a reasonable or an unreasonable search. Examining the history of the Fourth Amendment is therefore critical to interpreting its meaning.¹⁵

The Framers drafted the Fourth Amendment to protect against intrusive and unlimited governmental searches, which had been prevalent in both England and the colonies.¹⁶ Pre-revolutionary authorities had abused their powers and outraged colonists, as well as many British citizens, by conducting both warrantless searches and searches authorized underPage 1905 General Warrants and Writs of Assistance.¹⁷ The hated General Warrants and Writs of Assistance granted government officials broad discretionary power to perform exploratory or investigative searches.¹⁸ In addition to these broad warrants, colonists chafed under warrantless searches as well.¹⁹Colonists objected to General Warrants, Writs of Assistance, and warrantless searches, all for the same reasons-they granted law enforcement officers discretion to conduct broad investigative searches without judicial oversight.²⁰ Therefore, colonists did not distinguish between the excessive discretion granted in the form of an overly broad warrant and the authority to search without a warrant; colonists considered both to be equally unjust.²¹

B The Establishment of a Warrant Requirement

The Fourth Amendment was promulgated in response to the Framers' distrust of law enforcement's broad discretion to search without judicial oversight.²² A proper historical interpretation of the Fourth Amendment is that law enforcement officials must obtain a warrant before a search unless an exception applies.²³ Therefore, "exploratory" or investigative warrantless searches, although perhaps convenient for law enforcement, are inconsistent with the Fourth Amendment.²⁴ The Fourth Amendment was designed to protect individuals' privacy and security.²⁵ In order to achievePage 1906 this goal, the Framers were willing to limit and, in some cases, frustrate the government's power to search in order to protect individuals' privacy.²⁶

The Supreme Court has determined that the Fourth Amendment requires that police must generally secure a warrant before executing a search.²⁷ The Court has taken the warrant requirement seriously, especially the need for the courts-rather than the police-to decide when a search is authorized.²⁸ As Justice Jackson explained, "'[The Fourth Amendment's] protection consists in requiring that [ ] inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'"²⁹ As a result, the courts should grant exceptions only when an emergency situation makes it reasonable for law enforcement to search without a warrant.³⁰ Accordingly, the Supreme Court allows only "'a few specifically established and well-delineated exceptions'"³¹ to the warrant requirement.³² One of those exceptions is the search-incident-to-arrest exception.³³

III Chimel and the Modern Search-Incident-to-Arrest Doctrine

The Supreme Court has recognized some form of a search-incident-to-arrest exception for at least the past century.³⁴ Historically, the search-incident-to-arrest exception was not well-defined and was often used to justify broad searches of any area under an arrestee's control.³⁵ In Chimel v. California, the Court definitively established the scope of, and justification for, searches incident to arrest.³⁶ The Court held that two goals justified thePage 1907 exception: officer safety and preservation of evidence.³⁷ These two goals justified searching only the area in the arrestee's immediate control.³⁸

A The Justification and Scope of Searches Incident to Arrest

In Chimel v. California, the police had arrested Chimel in his home for burglary.³⁹ They did not have a warrant to search the house, and Chimel refused to consent to a search.⁴⁰ The police, however, claimed that they had authority to conduct a search incident to arrest.⁴¹ Under this asserted authority, the officers spent nearly an hour searching every room in the house, "including the attic, the garage, and a small workshop."⁴² In some of the rooms, they searched extensively through closed drawers.⁴³

The Court in Chimel explained that the existing search-incident-to-arrest doctrine would have allowed the search of Chimel's entire home.⁴⁴ Existing Supreme Court precedent, on which the government relied in Chimel, would have authorized a search of any "area . . . in the 'possession' or under the 'control'" of the arrestee.⁴⁵ The Court previously had upheld the search of a man's entire four-room apartment after arresting him in his living room and the extensive one-and-a-half hour search of another man's office.⁴⁶ Before Chimel, the Court conceded, police could have used the search-incident-to-arrest exception to conduct general investigatory searches to find evidence.⁴⁷

The Court in Chimel, however, struck down the police's search of Chimel's entire house as beyond the reasonable scope of a search incident to arrest.⁴⁸ In finding the search unreasonable, the Court definitively laid out the justification for, and the permissible scope of, such searches. According to the...