* Professor of Law, Pepperdine University School of Law. The author gratefully acknowledges the assistance of research assistants Daniel Montiel and Kirsten E. Seebart.
1 See U.S. Const. amend. IV. While some circuit courts adopted an “automatic companion” rule, permitting an automatic frisk of the companion of an arrestee, other courts have rejected this rule. Compare United States v. Poms, 484 F.2d 919, 922 (4th Cir. 1973) (per curiaim) and United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971), with United States v. Flett, 806 F.2d 823, 827 (8th Cir. 1986) and United States v. Bell, 762 F.2d 495, 498 (6th Cir. 1985). Further, the United States Supreme Court expressly rejected a rule that would permit a frisk of a bar patron who happened to be present when a search warrant was served on the bar. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Furthermore, the search of a companion’s handbag, which included removing her wallet and identification, along with a pouch and a second wallet, exceeds the scope of a “frisk,” which is the cursory pat down of the suspect’s outer clothing. See Terry v. Ohio, 392 U.S. 1, 30–31 (1968) (where an officer has specific and articulable facts, the pat down of a suspect’s outer clothing for the purpose of locating weapons on the suspect’s person was justified). A search therefore must be justified by probable cause and a search warrant or circumstances excusing the warrant requirement.
2 See 119 S. Ct. 1297, 1303 (1999).
3 See id. at 1299. Officers stopped an automobile for speeding and a faulty brake light. See id. After ordering the occupants out of the vehicle and questioning the driver about a syringe he saw in the driver’s pocket, the police officer retrieved a handbag from the rear seat of the car, which Ms. Houghton claimed was hers. See id. The officer searched the handbag and found drugs and drug paraphernalia. See id.
4 See, e.g., Houghton, 119 S. Ct. 1297; Belton v. United States, 453 U.S. 454 (1981); Carroll v. United States, 267 U.S. 132 (1925).
5 See 453 U.S. 454 (1981).
6 See id. at 460. The arrest power justifications for permitting a warrantless search—police officer safety and preventing destruction of evidence—differ from the considerations that initially justified the automobile exception under Carroll v. United States. See infra Part I.C.
7 See U.S. Const. amend. XVIII (repealed 1933); National Prohibition Act, ch. 85, § 26, 41 Stat. 305, 315 (1919)(repealed 1933).
8 See National Prohibition Act § 7.
9 See Carroll, 267 U.S. at 132, 160 (1925).
10 See id.
11 See id.
12 See id. at 172.
13 See id.
14 See Carroll, 267 U.S. at 159–62.
15 Id. at 153.
16 See id.
17 See id.
18 See id.
19 See Chambers v. Maroney, 399 U.S. 42, 51 (1970) (recognizing that the Fourth Amendment protects against unreasonable searches and unreasonable seizures).
20 See supra Part I.A.
21 See infra Part I.B.1.
22 See infra Part I.B.2.
23 See infra Part I.B.3.
24 See United States v. Chadwick, 433 U.S. 1, 12–13 (1977).
25 See id. at 4, 11.
26 See id. at 11–12.
27 See id. at 12 (citing Cady v. Dombrowski, 413 U.S. 433, 441–42 (1973)).
28 See id.
29 See Chadwick, 443 U.S. at 12.
30 See id. at 12–13.
31 See id.
32 See id.
33 See Chadwick, 443 U.S. at 13.
34 See id. at 7 (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).
35 See infra Part II.B.3.
36 See 471 U.S. 386, 391 (1985).
37 See id. at 391; see also Michigan v. Thomas, 458 U.S. 259, 261 (1982) (holding “that the justification to conduct such a warrantless search does not vanish once the car has been immobilized”); United States v. Matthews, 32 F.3d 294, 298–99 (7th Cir. 1994) (upholding warrantless search of immobilized automobile based upon diminished expectation of privacy).
38 See 471 U.S. at 391.
39 See id. at 392.
40 See id.
41 See id. at 388, 393–94.
42 Id. at 405 (Stevens, J., dissenting).
43 See 442 U.S. 753, 766. As in Chadwick, the police in Sanders had developed probable cause to search the suitcase before the suitcase was placed into the trunk of a taxi. Compare Sanders, 442 U.S. at 755 (police had probable cause to believe suitcase which was placed in trunk of taxi contained marijuana), with Chadwick, 433 U.S. at 3–4 (federal agents had probable cause to believe footlocker contained illegal drugs). But, unlike Chadwick, the government in Sanders sought to justify the search under the automobile exception. Compare Sanders, 442 U.S. at 762–63 (government justified search under automobile exception), with Chadwick, 433 U.S. at 11 (prosecutor did not contend that the footlocker’s “brief contact with the automobile’s trunk” allowed a search under the automobile exception doctrine, instead arguing that the luggage itself was “mobile” and therefore, analogous to a search of an automobile).
44 See Sanders, 442 U.S. at 766.
45 See 453 U.S. 420, 428–29 (1981).
46 See id. at 426.
47 See 456 U.S. 798, 801, 824–25 (1985).
48 See id. at 804.
49 See id. at 820.
50 See id.
51 See id. at 824.
52 See Ross, 456 U.S. at 820–22.
53 See id. at 824 (reaffirming the holding in Sanders, 442 U.S. 753 (1979)).
54 See id. at 839–40 (Marshall, J., dissenting).
55 See generally 500 U.S. 565 (1991).
56 See id. at 580.
57 Id.
58 See id. at 575 (quoting Sanders, 442 U.S. at 770 (Blackmun, J., dissenting)).
59 See, e.g., Katz, 389 U.S. at 356 (refusing to validate a warrantless search which would have been within the scope of a search that could have been authorized by a judicial officer); Johnson v. United States, 333 U.S. 10, 14 (1948) (invalidating warrantless search of apartment where officers had evidence based upon which a magistrate would likely have issued a search warrant).
60 See Acevado, 500 U.S. at 575–76.
61 See id.
62 See infra Part II.C.
63 Compare Acevado, 500 U.S. at 580 (police may conduct warrantless search of any container in a car if supported by probable cause), with Chadwick, 433 U.S. at 11, 13 (containers not found during the search of an automobile require a warrant before a search may be conducted).
64 See Chadwick, 433 U.S. at 11, 13.
65 See Acevado, 500 U.S. at 580.
66 See U.S. Const. amend. IV (“The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures shall not be violated . . . .”)(emphasis added).
67 See infra notes 68–79 and accompanying text.
68 See 433 U.S. at 13.
69 See 468 U.S. 796, 799 (1984).
70 See id. at 800.
71 See id. at 798, 801–03.
72 See id. at 803.
73 The occupants of the apartment in Segura had been arrested and taken into custody. See 468 U.S. at 800, 801. Thus, it may be argued that they had no opportunity to exercise their possessory interest in the apartment. Other courts also have approved seizures pending warrants. See United States v. Rodriguez, 869 F.2d 479, 485–86 (9th Cir. 1989) (“So long as the ‘seizure’ of the premises was supported by probable cause, and not otherwise unreasonable, items subsequently seized under the valid warrant are not directly excludable.”); United States v. Veillette, 778 F.2d 899, 903 (1st Cir. 1985) (approving seizure of motorcycle shop pending the issuance of a search warrant).
74 See, e.g., United States v. Hogan, 38 F.3d 1148, 1151 (10th Cir. 1994) (upholding the warrantless seizure of a camper pending the issuance of search warrant); Rodriguez, 869 F.2d at 486 (approving seizure of residence from mid-afternoon to mid-evening pending issuance of a warrant); Veillette, 778 F.2d at 903 (approving the seizure of a shop pending the issuance of a search warrant despite an illegal entry).
75 See United States v. Watson, 423 U.S. 411, 417 (1976).
76 See Horton v. California, 496 U.S. 128, 130–31, 142 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).
77 See Chadwick, 433 U.S. at 13; Katz, 389 U.S. at 351, 357.
78 See Katz, 389 U.S. at 356, see also Agnello v. United States, 269 U.S. 20, 33 (1925).
79 See supra notes 68–78 and accompanying text.
80 See generally 399 U.S. 42 (1970).
81 See id. at 44.
82 See id.
83 See id. at 52.
84 See id. at 47.
85 Chambers, 399 U.S. at 51–52.
86 See generally 453 U.S. 454 (1981).
87 See 395 U.S. 752, 762–63 (1969).
88 See id. at 763.
89 See id.
90 See Belton, 453 U.S. at 460.
91 See generally Colleen Hancock, State Court Activism and Searches Incident to Arrest, 68 Va. L. Rev. 1085 (1982); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing Bright Lines and Good Faith, 43 U. Pitt. L. Rev. 307 (1982); Robert A. Stern, Comment, Robbins v. California and New York v. Belton: The Supreme Court Opens the Door to Container Searches, 31 Am. U. L. Rev. 291 (1982).
92 See Belton, 453 U.S. at 461; accord United States v. Robinson, 414 U.S. 218, 236 (1973) (approving search of a cigarette pack on the defendant’s person following his arrest for driving without a license).
93 See generally 267 U.S. 132 (1925).
94 See generally 433 U.S. 1 (1977).
95 This is in contrast to the circumstances in Chambers where the vehicle had already been seized and its owners were lawfully in custody. See 399 U.S. at 44, 51–52. In that circumstance, prolonging for a few hours, or even days, the seizure of a vehicle is a much less significant intrusion upon the rights of the individual because its occupants could not use it regardless. See id.
96 See Fed. R. Crim. P. § 41(c)(2).
97 See, e.g., Ala. Code § 12–21–183 (1995); Alaska Stat. § 12.35.010 (b) (1998); Ariz. Rev. Stat. Ann. § 13–3914 (c) (1989); Cal. Penal Code § 1526 (b) (West 1997); Kan. Stat. Ann. § 22–2502 (1997); Mich. Comp. Laws Ann. § 780.651 (West 1982); Neb. Rev. Stat. § 29–814.03 (1995); Nev. Rev. Stat. § 179.045 (2) (1997); N.Y. Crim. Proc. L. § 690.36 (McKinney 1995); S.D. Codified Laws Ann. § 23A–35–5 (1998); Utah Code Ann. § 77–23–204(2) (1999); Wis. Stat. Ann. § 968.12 (3) (West 1998).
98 See United States v. Morgan, 744 F.2d 1215, 1222 (6th Cir. 1985) (noting that even a telephonic search warrant takes at least one half hour); United States v. Baker, 520 F. Supp. 1080, 1084 (S.D. Iowa 1981) (telephonic search warrants are obtainable in 20 to 30 minutes).
99 As the Carroll decision recognized, the mobility of the vehicle made seeking a warrant “impracticable.” See 267 U.S. at 153. The only practicable alternative to the immediate search would have been to immobilize the vehicle and its occupants until the search warrant had been secured.
100 Chambers, 399 U.S. at 51.
101 See supra Part I.B.3.
102 See Morgan, 744 F.2d at 1222 (noting that even a telephonic search warrant takes at least one half hour); People v. Aguirre, 26 Cal. App. 3d Supp. 7, 11 (App. Dep’t Super. Ct. 1972) (telephonic search warrant issued in 12 minutes).
103 See infra part I.B.1.
104 Cf. Veronia School District 475 v. Acton, 515 U.S. 646, 654–60 (1995) (considering the nature of the privacy interest as well as the character of the intrusion to determine the reasonableness of a search under the Fourth Amendment); South Dakota v. Opperman, 428 U.S. 364, 367 (1976) (“less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office”).
105 See Chadwick, 433 U.S. at 13.
106 See id.
107 See, e.g., Cal. Veh. Code § 4150 (West 1987); Fla. Stat. Ann. § 319.23 (West Supp. 2000); N.Y. Veh. & Traf. Law § 401 (McKinney 1999); Wash. Rev. Code Ann. § 46.12.040 (West Supp. 2000).
108 See, e.g., Cal. Health & Safety Code § 13113.8 (West Supp. 1999) (requiring smoke detectors in single family homes); N.Y. Gen. Bus. Law § 389–m, o (McKinney 1999) (requiring safety glass in residential housing); Wash. Rev. Code Ann. § 48.48.140 (West 1999) (requiring smoke detectors in all dwellings).
109 The Fourth Amendment pays specific attention to the right of the people to be secure in their houses. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .”)(emphasis supplied); see also United States v. Thomas, 757 F.2d 1359, 1366–67 (2d Cir. 1985) (finding a dog sniff outside an apartment constituted an illegal search because of the heightened expectation of privacy in one’s home).
110 See, e.g., Cal. Veh. Code § 12800 (West 1987); Fla. Stat. Ann. § 322.03 (West 1995); N.Y. Veh. & Traf. Law § 301 (McKinney 1999); Wash. Rev. Code Ann. § 46.20.161 (West Supp. 2000).
111 See, e.g., Cal. Health & Safety Code § 44011 (West 1996); Fla. Stat. Ann. § 325.207 (West 1999); N.Y. Veh. & Traf. Law § 301 (McKinney 1999); Wash. Rev. Code Ann. 46.16.015 (West Supp. 2000).
112 See, e.g., Cal. Veh. Code § 2814 (West 1987); Fla. Stat. Ann. § 325.203 (West Supp. 1999); N.Y. Veh. & Traf. Law § 375 (McKinney 1996); Wash. Rev. Code Ann. § 46.64.070 (West Supp. 2000).
113 See, e.g., Cal. Health & Safety Code § 44011.3 (West Supp. 1999).
114 See 433 U.S. at 13.
115 See Michigan v. Clifford, 464 U.S. 287, 293 (1984); Michigan v. Tyler, 436 U.S. 499, 509–10, 511–12 (1978); United States v. Parr, 716 F.2d 796, 812–13 (11th Cir. 1983). But see United States v. Urban, 710 F.2d 276, 279–80 (6th Cir. 1983).
116 See California v. Acevedo, 500 U.S. 565, 579 (1991); Chadwick, 433 U.S. at 13.
117 See Chadwick, 433 U.S. at 13.
118 Id.
119 See 500 U.S. at 579.
120 See 433 U.S. at 515–16.
121 See 500 U.S. at 579.
122 See 456 U.S. 798, 821 (1982).
123 See Gary Webb, DWB, Esquire Mag., Apr. 1999, at 120, 126 [hereinafter DWB].
124 See id. at 120.
125 See id. at 122.
126 See Perrin et al., If It’s Broken, Fix It: Moving Beyond the Exclusionary Rule—A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule, 83 Iowa L. Rev. 669, 736–40 (1998).
127 See id.
128 See, e.g., Robyn Meredith, Near Detroit, a Familiar Sting in Being a Black Driver, L.A. Times, July 16, 1999, at 28; Jan Golab, Probable Cause, L.A. Mag., Aug. 1999, at 74.
129 See DWB, supra note 123, at 122.
130 See id.
131 See id. at 126. Part of the settlement of that lawsuit required the police to maintain records of their stops over a three year period. Those records revealed that, of the 732 people stopped in the anti-drug Operation Pipeline, 75% were black and 5% were Hispanic. See id.
132 See Perrin et al., supra note 126, at 738.
133 See Myron W. Orfield, Jr., Deterrence, Perjury and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 Colo. L. Rev. 75, 85–88 (1992). In the case of Curtis Rodriguez, prior to searching the car the officer said in a monotone “I’m in fear for my life” as a justification for the search. See DWB, supra note 123, at 120.
134 Johnson v. United States, 333 U.S. 10, 14 (1948). See also United States v. Lefkowitz, 285 U.S. 452, 464 (1932) (“Security against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime.”).
135 See Katz v. United States, 389 U.S. 347, 357 (1967).
136 The Court has invoked the reasonableness clause, rather than the warrant clause, when the government’s search or seizure serves “special needs” beyond mere criminal law enforcement. See Veronia School District 475 v. Acton, 515 U.S. 646, 653 (1995). The court stated:
Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. . . . A search unsupported by [a warrant and] probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)).
137 See T. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473–74 (1985).
138 See California v. Acevedo, 500 U.S. 565, 583–84 (1991) (Scalia, J., concurring).
139 Beck v. Ohio, 379 U.S. 89, 96 (1964) (citing Katz, 389 U.S. at 358).
140 See 468 U.S. 897, 928 (1984)(Blackmun, J., concurring).
141 Justice Harlan’s concurring and dissenting opinion in Chambers recognizes that the seizure of an automobile—even for an entire day—while officers seek a search warrant will almost always involve a lesser intrusion upon an individual’s Fourth Amendment rights than will an immediate warrantless search. See 399 U.S. at 63–64.
142 See United States v. Segura, 468 U.S. 796, 798 (1984).
143 See Wyoming v. Houghton, 119 S. Ct. 1297, 1299 (1999).
144 See id.
145 See id.
146 See id. at 1299.
147 See id.
148 See Houghton, 119 S. Ct. at 1304.
149 See 500 U.S. at 580.
150 See Houghton, 119 S. Ct. at 1229.
151 See, e.g., Cal. Health & Safety Code § 11364 (West Supp. 1999); Cal. Penal Code § 836 (West 1999); N.Y. Gen. Bus. Law § 851 (McKinney 1996).
152 See supra Part I.C.