A traveller, lost in a strange city, can occasionally make three wrong turns and find himself on, if not necessarily the right road, at least one that is going in the right direction. Similarly, the United States Supreme Court, lost in the strange city of Fourth Amendment law,(1) has taken three wrong turns, but may yet find itself on a road that, if not "right," in terms of the Court's precedents, is logically defensible and will lead to a much more straightforward rule for police. However, like the traveller, if the Court fails to recognize what it has done, it will be doomed to continue its wayward course. The three wrong turns that the Court has taken are United States v. Robinson(2) (a warrantless search incident to any custodial arrest may be a "full body search," including a search of any containers in the suspect's possession), New York v. Belton(3) (a warrantless search incident to arrest of an occupant of an automobile extends to all containers in the passenger compartment), and California v. Acevedo(4) (warrantless automobile searches may extend to all containers found in the automobile searched).
This Article will discuss why these three cases were wrongly decided according to the Court's logic and precedents. That is, they are flatly inconsistent with the Court's oft-advanced claim that search warrants are ordinarily "required" subject to a "few specifically established and well-delineated exceptions."(5) It will further consider how these decisions will lead (indeed, largely have led) to the complete abandonment of the search warrant requirement for all searches conducted out of doors and will lead to the establishment of a "two model" approach to the Fourth Amendment, with warrants required for searches of structures, but not of other places. It will conclude with a model statute that will capture this new development in a succinct and comprehensible form.(6) This formulation will demonstrate that the Court has, apparently through inadvertence, presented itself with a golden opportunity to render Fourth Amendment law clearer and more straightforward than at any time since the "criminal procedure revolution" began.(7)
THE WARRANT REQUIREMENT ABANDONED
UNITED STATES V. ROBINSON(8)
In Robinson, the Court's first incorrect decision, a policeman spotted a man, whose driver's license he knew to have been revoked, driving a car.(9) The policeman stopped the car and placed the driver under arrest.(10) The officer then searched the driver incident to the arrest and felt an unknown object in the driver's breast pocket.(11) He then removed the object, a crumpled cigarette package, from the driver's pocket.(12) He opened the package and found gelatin capsules of white powder which later were determined to be heroin.(13)
The Supreme Court upheld the admission of the heroin at the defendant's trial for narcotics possession. The majority, per Justice Rehnquist, held that the Court had long recognized, albeit in dicta, that a "search incident to arrest is a traditional exception to the warrant requirement."(14) The Court further held, though without any prior authority in dicta or otherwise, that such a search includes a "full search" of the arrestee, even where the arrest is for a crime (driving with a revoked permit) for which there is no evidence to be found.(15) Thus, the Court approved the seizure and opening of the cigarette pack, and, apparently, of any other containers found upon arrestees, upon no showing beyond that of a lawful arrest.
Robinson can be criticized on the ground that, even though most would agree that an arrestee should be routinely subject to a patdown for weapons,(16) it does not follow that an evidentiary search may be performed without probable cause that evidence may be found and, possibly, a warrant. Since in Robinson no evidence could have been found for the traffic violation for which the defendant was being arrested, there was no probable cause, much less a warrant. Therefore, any evidence seized from the suspect except a weapon (or something that could have been a weapon(17)) had to be suppressed. Both the D.C. Circuit and the Robinson dissent adopted this position.(18)
Professor Wayne LaFave agrees with the majority's result on this issue. He argues that "a limitation on the |general authority' to search a person incident to arrest [to cases where there is] ... probable cause that particular items of evidence are presently to be found on the person" would be a rule "impossible of application by the police."(19) While I agree that this broad limitation would probably do more harm than good, it is troubling that the Court permits a routine full search incident to arrest when the police not only lack probable cause that evidence will be found, but also have no reason after the frisk to believe that either of the justifications for searches incident to arrest--to find weapons and to find evidence--is present. Still, as LaFave points out, once one concedes that a full search of the arrestee's person is necessary to seek out weapons that might not be disclosed by a frisk, such as a razor blade, then the seizure of evidence found during such a search does not intrude further on the arrestee's privacy.(20)
However, as the Robinson dissenters noted, the search in that case exceeded even this rather lenient standard, because the Robinson majority also approved, without discussion, "a separate search of effects found on [the arrestee's] person."(21) As Justice Marshall observed in dissent, "even if the crumpled-up cigarette package had in fact contained some sort of a small weapon, it would have been impossible for respondent to have used it once it was in the officer's hands."(22) Thus, if there is to be a meaningful warrant requirement, the appropriate course of action by police would be to seize any containers, such as cigarette packs, wallets, purses and briefcases possessed by arrestees, and only open them with a search warrant based on probable cause that the receptacle contains evidence of a crime.
This approach is consistent with United States v. Chadwick,(23) in which the Court held that the warrantless search of a footlocker by police was unjustifiable, despite the presence of probable cause to search and despite the possessor's arrest. In Chadwick, federal narcotics agents seized a footlocker which they had probable cause to believe contained marijuana.(24) They later opened it without obtaining a search warrant and found marijuana on which basis the defendant was subsequently convicted.(25) The Court, per Chief Justice Burger, held:
In this case, important privacy interests were at stake. By placing personal
effects inside a double-locked footlocker, respondents manifested
an expectation that the contents would remain free from public
examination. No less than one who locks the doors of his home
against intruders, one who safeguards his personal possessions in this
manner is due the protection of the Fourth Amendment Warrant
Clause. There being no exigency, it was unreasonable for the Government
to conduct this search without the safeguards a judicial warrant
In Chadwick, the Court rejected the Government's argument that since the Court permitted searches of cars without warrants, it should permit a search of the footlocker.(27) Although a footlocker, like a car, is mobile, the Court held that one had a lesser expectation of privacy in a car than in a footlocker. "Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects."(28) Even the two dissenters agreed that the government's argument, "restrict[ing] the protection of the Warrant Clause to private dwellings and a few other |high privacy areas'" was "an extreme view of the Fourth Amendment."(29)
Thus Chadwick, decided after Robinson, specifically held that a footlocker and other "possessions within an arrestee's immediate control" were immune from warrantless searches, incident to arrest or otherwise.(30) One could dismiss the seemingly contrary result in Robinson by concluding that the Court simply did not consider the cigarette package a sufficiently important repository of personal effects, or its opening a sufficient intrusion, to require a warrant.(31) This view is bolstered by the fact that the Robinson majority did not discuss the search of the cigarette pack as a separate intrusion; they simply assumed that looking in it was part and parcel of a routine search incident to arrest (unlike the opening of a full-fledged "repository of personal effects").(32)
Any such interpretation of Robinson is, however, discredited by the decisions in United States v. Edwards(33) and Illinois v. Lafayette.(34) In Edwards, the Court approved the post-detention seizure and search of an arrestee's clothes(35) and also discussed with approval Abel v. United States(36) where "the defendant was arrested at his hotel but the [suitcase] taken with him to the place of detention was searched there."(37) The Edwards Court characterized Abel as supporting the proposition that "searches and seizures that could be made on the spot at the time of arrest may legally be made at the place of detention."(38)
In Lafayette, the Court approved a pre-incarceration "inventory search" at the stationhouse of an arrestee's "purse-type shoulder bag."(39) The Court, without specifically discussing the "container search" aspect of Robinson, apparently assumed that, since the bag could have been searched at the scene of the arrest under Robinson and Chimel as an area within the immediate control of the arrestee,(40) and since the custody at the police station is "no more than a continuation of the custody inherent in the arrest status"(41) it followed that "any container or article in [the] possession" of an arrestee is subject to a full search, either at the scene of the arrest or at the stationhouse.(42) Thus, the Court in Edwards and Lafayette assumed what it had...