Supreme Court expands authority over motorists and passengers

From Punch and Jurists

Wyoming v. Houghton (Justice Scalia)

Docket No. 98-184 (U.S. Supreme Court, 4/5/99)

This is another case that shows the remaking of the Constitution by Justice Scalia. In its latest decision expanding the authority of the police over motorists and their passengers, Justice Scalia, writing for a majority of the Court, held that police officers who have probable cause to search a car for illegal drugs can search the personal belongings of passengers who are themselves under no suspicion of illegal activity.

In this case, the Wyoming police stopped a car for speeding. When the police noticed that the driver had a hypodermic needle in his shirt pocket, he candidly admitted that he used it to take drugs. The police then proceeded to search the rest of the car, including the purse of one of the two passengers. The purse was found to contain drug paraphernalia and a syringe with 60 ccs of methamphetamine. They also discovered fresh needle-track marks on the owner's arms. She was placed under arrest and charged with felony possession of methamphetamine. After the State court denied her motion to suppress the evidence as a violation of her rights under the Fourth Amendment, she was convicted as charged.

On appeal, the Wyoming Supreme Court reversed, holding that the search of respondent's purse violated the Fourth and Fourteenth Amendments because the officer "knew or should have known that the purse did not belong to the driver, but to one of the passengers," and because "there was no probable cause to search the passengers' personal effects and no reason to believe that contraband had been placed within the purse." It thus adopted the rule that "if the officer knows or should know that a container is the personal effect of a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection."

The Supreme Court reversed, holding that the Wyoming Supreme Court had incorrectly drawn a distinction, on the basis of ownership, between items that could be the subject of a warrantless automobile search and those that could not. The majority held that "police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search."

The rationale for Justice Scalia's decision was twofold: First, citing often the "Framers" of the Constitution (although clearly without intending that the term be taken as an oxymoron), he decreed that "Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which 'travel public thoroughfares'."

He then followed that scary proposition with his newly minted "Government necessity" principle which went like this: "The governmental interests at stake are substantial. Effective law enforcement would be appreciably impaired without the ability to search a passenger's personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. . . . To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger's belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a "passenger's property" rule would dramatically reduce the ability to find and seize contraband and evidence of crime. . .

"When balancing the competing interests, our determinations of 'reasonableness' under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak."

Justice Breyer, who concurred, recognized that the majority's ruling was so broad that he felt constrained to emphasize that "Obviously, the rule [adopted by the Court today] applies only to automobile searches. . . . Equally obviously, the rule applies only to containers found within automobiles. And it does not extend to the search of a person found in that automobile."

Justice Stevens, joined by Justices Souter and Ginsberg, dissented. He wrote: "Today, instead of adhering to the settled distinction between drivers and passengers, the Court fashions a new rule that is based on a distinction between property contained in clothing worn by a passenger and property contained in a passenger's briefcase or purse. In cases on both sides of the Court's newly minted test, the property is in a 'container' (whether a pocket or a pouch) located in the vehicle. . . . [T]he Court's rights-restrictive approach is not dictated by precedent. . . .Finally, in my view, the State's legitimate interest in effective law enforcement does not outweigh the privacy concerns at issue." Justice Stevens relied heavily on the Court ruling in U.S. v. Di Re, 332 U.S. 581 (1948) - "the only automobile case confronting the search of a passenger defendant."

QUOTE OF THE ISSUE - Some thoughts on the "necessity" argument used by Justice Scalia to support of the expansion of the Fourth Amendment to cover searches of the property of passengers in a car who are not suspected to criminal wrong-doing.

"The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car. Necessity, an argument advanced in support of this search, would seem as strong a reason for searching guests of a house for which a search warrant had issued as for search of guests in a car for which none had been issued. By a parity of reasoning with that on which the Government disclaims the right to search occupants of a house, we suppose the Government would not contend that if it had a valid search warrant for the car only it could search the occupants as an incident to its execution. How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit?

"We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled. . . . We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment." Justice Jackson, in U.S. v. Di Re, 332 U.S. 581, 587 and 595 (1948).

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