Search and Seizure in the Vehicular Context: Fourth Amendment Issues

Congressional research reportSep 15, 1999

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Search and Seizure in the Vehicular Context:

Fourth Amendment Issues

September 15, 1999

(name redacted)

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

This report discusses the Fourth Amendment as it relates to vehicular searches and traffic

detentions conducted by law enforcement officers. An overview of exceptions to the warrant

and probable cause requirements prescribed under the Constitution is provided, outlining the

range of permissible police activity in this area. A particular emphasis is placed on recent

Supreme Court decisions, including the validity of pretextual stops and consent based

searches, which illustrate the balancing approach used by the Court to weigh personal privacy

interests against the legitimate safety and investigatory needs of law enforcement, and serve

to clarify the extent of police power in the vehicular context.

Search and Seizure in the Vehicular Context:

Fourth Amendment Issues

Summary

The Fourth Amendment to the Constitution of the United States provides that

"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." The Supreme Court has interpreted this language as imposing a presumptive

warrant requirement on all searches and seizures predicated upon governmental

authority, and has ruled that any violations of this standard will result in the

suppression of any material or information derived therefrom.

However, the Court has also recognized that certain circumstances render the

obtainment of a warrant impractical or unnecessary, and, accordingly, has crafted

exceptions to an otherwise inflexible constitutional standard. Among the various

exceptions established by the Court are warrantless searches based on exigent

circumstances, plain view seizures, searches incident to a valid arrest, and searches

where law enforcement needs surpass the warrant requirement. Some of the most

pervasive and controversial exceptions recognized by the Court have centered on law

enforcement authority to conduct warrantless searches and investigatory detentions

in the vehicular context. Recent Court decisions in this area have imbued law

enforcement officers with greater authority to act without a warrant during traffic

stops, based upon the previously established automobile exception and the need for

adequate protective measures to ensure police safety. This apparent expansion of

police power has led many commentators to assert that Fourth Amendment

protections have been essentially eviscerated in the automobile and traffic stop setting.

Upon examining the scope of law enforcement authority subsequent to these

decisions, however, it appears that basic Fourth Amendment privacy strictures still

pertain to traffic detentions, with the recent Court rulings simply applying previously

established rationales to new factual scenarios.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Automobile Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Investigatory Detentions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pretextual Stops . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Post-Stop Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Protective Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Seizure of Items in Plain View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Consent Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Search Incident to Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Search and Seizure in the Vehicular Context:

Fourth Amendment Issues

Introduction

In its past few terms, the Supreme Court of the United States has exhibited a

renewed interest in Fourth Amendment issues surrounding law enforcement practices

in the traffic detention, search, and seizure contexts. In the majority of these cases,

the Court has determined that the state action at issue is either presumptively valid,

or that the public interest in the deterrence and detection of criminal activity

outweighs any potential intrusion upon asserted personal liberty and privacy interests.

This paper addresses the dynamics and scope of law enforcement authority in the

traffic detention context in light of these recent decisions, with an analytical focus on

the extent to which they impact fundamental Fourth Amendment principles.

The Fourth Amendment

The Fourth Amendment to the Constitution of the United States establishes that

a search or seizure conducted by a governmental agent must be reasonable, and that

probable cause support any judicially granted warrant.1 Originally, the Supreme Court

interpreted this provision as imposing a presumptive warrant requirement, declaring

that "searches conducted outside the judicial process without prior approval by judge

or magistrate are per se unreasonable under the Fourth Amendment - subject only to

a few specifically established and well delineated exceptions."2 The Court has

eschewed this approach at times, determining that "a warrant is not required to

establish the reasonableness of all government searches; and when a warrant is not

required...probable cause is not invariably required either."3 In the criminal setting,

U.S. Const., Amend. IV. In full, 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." The probable cause standard for a valid governmental

search has been interpreted by the Supreme Court as "a fair probability that contraband or

evidence of a crime will be found in a particular place."Illinois v. Gates, 462 U.S. 213, 238

(1983). In the arrest context, probable cause to obtain a warrant to arrest or to effectuate a

warrantless arrest requires that the authorities have, at the moment of arrest, knowledge of

facts and circumstances sufficient to warrant a reasonable belief that an offense has been, or

is being, committed. See Wong Sun v. United States, 371 U.S. 471, 479 (1963).

Katz v. United States, 389 U.S. 347, 357 (1967).

Vernonia School District 47J v. Acton, 515 U.S. 646, 653 (1995). This standards has

generally been applied to administrative searches, but has been used in the criminal context.

(continued...)

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however, this warrant requirement traditionally has been viewed as a protective

mechanism, placing the authority to determine probable cause in the hands of a neutral

magistrate as opposed to law enforcement authorities, who are "engaged in the often

competitive enterprise of ferreting out crime."4 In instances where the interests of the

public outweigh those of private individuals, however, the Court has recognized

"specifically established exceptions" to the warrant and probable cause requirements

of the Fourth Amendment.5 Indeed, such exceptions have been recognized for

searches incident to a valid arrest, plain view seizures, vehicle searches, investigatory

detentions, and exigent circumstances, among others.6

The Automobile Exception

In Carroll v. United States, the Supreme Court determined that automobiles are

inherently mobile, creating exigent circumstances which render the obtainment of a

warrant impractical.7 Specifically, the Court found it significant that, unlike a building

or a house, a vehicle, and any contraband therein, could be readily removed from a

jurisdiction pending the issuance of a warrant.8 As such, the Court held that law

enforcement authorities need not obtain a warrant to search an automobile when there

is probable cause indicating illegal activity.9 The Supreme Court has further buttressed

the automobile exception by declaring that there is a reduced expectation in the

privacy of automobiles, given that they are rarely used as a repository for personal

effects, their occupants and contents are generally in plain view, and are subject to

extensive state regulation.10

Regarding the proper scope of searches conducted pursuant to the automobile

exception, the Supreme Court has held that when police have probable cause to

believe that a vehicle contains contraband, they may conduct a thorough warrantless

search, including any containers which may conceal the object of the search.11

(...continued)

See Illinois v. Rodriguez, 497 U.S. 177 (1990).

Johnson v. United States, 333 U.S. 10, 13-14 (1948).

Camara v. Municipal Court, 387 U.S. 523, 539-540 (1967).

For a thorough exposition of warrant and probable cause exceptions, see Twenty-Eighth

Annual Review of Criminal Procedure: Warrantless Searches and Seizures, 87 Geo. L.J. 1124

(1999).

Carroll v. United States, 267 U.S. 132, 153 (1925).

Id. at 153-154.

Id. at 149. See also, Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless search deemed

constitutional where probable cause existed to believe vehicle contained evidence of recently

committed robbery).

United States v. Chadwick, 433 U.S. 1, 12-13 (1977). Similarly, the Court has pointed to

public operation and servicing as factors which further diminish the expectation of privacy

in an automobile. See California v. Carney, 471 U.S. 386, 392 (1985).

United States v. Ross, 456 U.S. 798, 825 (1982). In Ross, the Court declared that a search

under the automobile exception may extend as far as "a magistrate could legitimately

(continued...)

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The Supreme Court recently clarified the extent to which police officers may

search belongings in a vehicle in Wyoming v. Houghton.12 There, the Court held that

police officers with probable cause to search a car may inspect a passenger's personal

belongings inside the vehicle in instances where those items are capable of concealing

the object of the search, irrespective of whether the passenger is under suspicion.13 In

reaching this conclusion, the Court pointed to several factors. First, the Court noted

that there was a strong body of law empowering government agents with probable

cause to conduct warrantless searches of vessels for contraband, including the

automobile exception as delineated in Carroll, and clarified in Ross.14 Also, the Court

found that none of these cases indicated that the scope of such searches rested upon

a "distinction among packages or containers based on ownership."15

Balancing the relative governmental interests against individual privacy in this

scenario, the Court determined that passengers have a reduced expectation of privacy

in property transported in automobiles, and that search of such property is minimally

intrusive. Conversely, the Court found that the governmental interests at stake were

substantial. Specifically, the Court held that law enforcement efforts would be

impaired if authorities were unable to search a passenger's belongings "when there is

reason to believe contraband or evidence of criminal wrongdoing is hidden in the car,"

given that the mobility of an automobile creates a risk that evidence will be lost while

a warrant is obtained.16 Also, the Court found it significant that car passengers "will

often be engaged in a common enterprise with the driver, and have the same interest

in concealing the fruits or the evidence of their wrongdoing."17 In view of these

factors, the Court ruled that such searches were permissible.

Investigatory Detentions

In Terry v. Ohio, the Supreme Court held that a police officer may stop and

question an individual who is reasonably suspected of engaging in criminal activity,

as well as perform a limited frisk to ascertain whether the individual in question is

armed.18 Specifically, the Court addressed a factual scenario where an officer, lacking

both a warrant and probable cause, detained three individuals after observing them

loitering near a store in a suspicious manner. The officer stopped the individuals in

order to ascertain their identities, and, fearing that they might be armed, patted down

the outside of their clothing. This frisk resulted in the discovery of two revolvers.

(...continued)

authorize by warrant." Id.

119 S.Ct. 1297 (1999).

Id.

Id. at 1300.

Id. at 1301.

Id. at 1302.

Id. at 1302-1303. The Court further noted that criminals might conceal contraband in the

belongings of a passenger surreptitiously, and that passenger confederates could simply claim

all belongings in the car as their own.

392 U.S. 1, 22-24 (1968).

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Noting that the state action at issue was governed by the Fourth Amendment, the

Court stated that the constitutional validity of "stop and frisk" hinged upon a

reasonableness inquiry as opposed to a probable cause analysis.19 As such, the Court

determined it necessary to balance "the need to search (or seize) against the invasion

which the search or seizure entails."20 Accordingly, the Court identified two factors

which it deemed essential to a valid investigative detention.

First, law enforcement officers may initiate an investigative detention only when

there is a "reasonable articulable suspicion" criminal activity. Thus, for a stop to be

valid, a law enforcement officer "must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

that intrusion."21 Second, the scope of law enforcement activity resulting from an

investigative detention must be reasonably related to the circumstances supporting the

initial stop. If these factors are present, according to the Court, a brief investigative

detention may be justified in light of significant governmental interests, even where

probable cause is lacking.

This analysis has been applied in the vehicular context as well. Specifically, while

the Supreme Court has ruled that even a brief traffic detention constitutes a seizure

under the Fourth Amendment, the Court has also determined that traffic stops are less

onerous than formal custodial detentions.22 As such, traffic stops are equivalent to

traditional Terry stops, requiring that law enforcement action be predicated upon a

reasonable, articulable suspicion of criminal conduct and that ensuing police activity

be reasonably related in scope to the initial basis of the stop.23

Pretextual Stops

Whereas the stop and frisk rationale delineated in Terry can be of great utility to

police in the traffic detention context, it must be remembered that an officer must

have a "reasonable articulable suspicion" of illegal activity to justify an initial stop. To

surmount this potential impediment, law enforcement authorities have engaged in the

controversial practice of stopping individuals for minor offenses as a pretext to search

for evidence of other criminal wrongdoing. Generally speaking, a "pretextual traffic

stop" occurs when police effectuate a stop based on probable cause that a violation

has occurred while, in actuality, the primary motivation for the detention is to

Id. at 20. Specifically, the Court explained that a "stop and frisk" encounter involves "an

entire rubric of police conduct--necessarily swift action predicated upon the on-the-spot

observations of the officer on the beat--which historically has not been, and as a practical

matter could not be, subjected to the warrant procedure. Instead, the conduct in this case must

be tested by the Fourth Amendment's general proscription against unreasonable searches and

seizures." Id. at 20.

Id. at 21.

Id. at 21. Accordingly, inarticulable hunches or generalized suspicions cannot serve as the

basis for an investigative detention. Id. at 22.

Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

See United States v. Sharpe, 470 U.S. 675, 682 (1985); Delaware v. Prouse, 440 U.S. 648,

661(1979)

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investigate the possibility that more egregious criminal activity is being committed.24

In United States v. Whren, the Supreme Court considered the constitutionality of this

practice.

In Whren, two plainclothes vice officers of the District of Columbia Metropolitan

Police Department were patrolling an area of high drug activity in an unmarked car.

The officers passed a dark Nissan Sentra Pathfinder with temporary license plates

occupied by two young males, and observed that the driver of the vehicle was looking

toward the lap of the passenger. The officers noticed that the vehicle had paused at

a stop sign for an abnormal period of time. As the officers executed a U-turn towards

the vehicle, the Nissan made a sudden right turn without signaling and accelerated

from the intersection at an "unreasonable" speed. The officers subsequently stopped

the vehicle and observed two large bags of crack cocaine in the defendant's hands.

The defendants were arrested, and an ensuing search resulted in the discovery of other

illegal drugs.

The defendants were indicted on four counts of federal drug law violations. The

defendants moved to suppress the evidence, maintaining that the traffic stop was not

predicated on probable cause or reasonable suspicion, and, as such, was violative of

the Fourth Amendment. The district court denied the motion, stating that the stop

conformed with normal traffic enforcement procedures. The defendants were

ultimately convicted, and the disposition of their case was affirmed by the Court of

Appeals for the District of Columbia. In regards to the suppression argument, the

court of appeals held that "regardless of whether a police officer subjectively believes

that the occupants of an automobile may be engaging in some other illegal behavior,

a traffic stop is permissible as long as a reasonable officer in the same circumstances

could have stopped the car for the suspected traffic violation."

In its subsequent consideration of the case, a unanimous Supreme Court

adopted an objective test, declaring that "the decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation has

occurred."25 In reaching this conclusion, the Court rejected the contention that prior

precedent established that law enforcement should not be permitted "to use valid

bases of action against citizens as pretexts for pursuing other investigatory agendas."26

Specifically, the Court noted that the cases in question dealt with searches in the

administrative and inventory contexts which were conducted without probable cause.

Accordingly, the Court determined that such decisions gave no support to the

"principle that ulterior motives can invalidate police conduct that is justifiable on the

basis of probable cause to believe that a violation of law has occurred."27 Further

clarifying this point, the Court stated: "Not only have we never held, outside the

context of inventory search or administrative inspection..., that an officer's motive

Thus, under this definition, a pretextual stop is an objectively reasonable and valid exercise

of police power, as opposed to the notion that an officer may simply fabricate an underlying

justification for a stop. See United States v. Whren, 517 U.S. 806, 812 (1996).

517 U.S. at 810.

Id. at 811.

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invalidates objectively justifiable behavior under the Fourth Amendment; but we have

repeatedly held and asserted the contrary."28

In view of this case law, the Court held that there was no constitutional basis for

hinging the validity of a traffic stop on the actual motivations of the officers involved.

Indeed, the Court went on to state that adoption of a subjective test would require

case-by-case assessment of particular police actions at particular times, compromising

the invariable nature of Fourth Amendment search and seizure protections.29

Addressing the argument that pretextual stops might be employed in an

intentionally discriminatory fashion by authorities, the Supreme Court noted that it is

well settled that "the Constitution prohibits selective enforcement of the law based on

considerations such as race." The Court declared, however, that the proper

constitutional basis for such biased police action is the Equal Protection Clause as

opposed to the Fourth Amendment. The Court concluded its consideration of the

issue by declaring that "subjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis."30

Many commentators have decried the Whren decision, arguing that the Court has

essentially bestowed unbridled authority on law enforcement officers to detain any

individual upon the merest of suspicions.31 In particular, it has been argued that, given

the pervasive and arcane nature of traffic laws, a police officer will invariably be able

to effectuate an investigatory stop upon an "inarticulable hunch," as opposed to valid

reasonable suspicion. As such, these commentators maintain, the Supreme Court has

departed from the spirit, if not the letter, of the Terry standard. While Whren indeed

imbues officers with yet another tool with which they may investigate individuals of

whom they are suspicious, a strong case can be made that the Court's decision does

not reflect a substantial change in Fourth Amendment precepts. Specifically, it is

important to note that officers conducting a stop under the Whren standard must still

possess probable cause to initially stop a vehicle, which necessarily requires that a

valid traffic law has been violated. Furthermore, the Whren decision does not abrogate

Fourth Amendment strictures which limit police power after an initial stop. Indeed,

officers must still satisfy probable cause and reasonable suspicion standards before

Id. at 812. See United States v. Villamonte-Marquez, 462 U.S. 579, 584, n.3 (1983)

(Customs Service officer's warrantless boarding of vessel not rendered invalid by underlying

suspicion that contraband was on board); United States v. Robinson, 414 U.S. 218 (1973)

(arrest for traffic violation not rendered invalid due to the fact that it was a pretext for a

narcotics search); Scott v. United States, 436 U.S. 128, 138 (1978) (subjective intent,

standing alone, does not render otherwise lawful conduct illegal or unconstitutional).

Id. at 815. Specifically, the Court stated "police enforcement practices, even if they could

be practicably assessed by a judge, vary from place to place and from time to time. We cannot

accept that the search and seizure protections of the Fourth Amendment are so variable."

Id. at 813.

See David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme

Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 545-546 (1997);

Chris K. Visser, Without a Warrant, Probable Cause, or Reasonable Suspicion: Is There Any

Meaning to the Fourth Amendment While Driving a Car?, 35 Hous. L. Rev. 1683, 1708-1709

(1999).

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impinging upon a detainee's rights beyond the scope of the original objective purpose

for the stop.

Furthermore, the Court recognized the potential that pretextual traffic stops

could be made in an intentionally discriminatory fashion, and ruled that the proper

remedy for such an offense would be an equal protection claim. This holding is

consistent with Supreme Court precedent which mandates that objectively reasonable

enforcement measures should not be prohibited due to the possibility of

unconstitutional application. Rather, the proper remedy in such a circumstance is for

the aggrieved party to file suit. Accordingly, it seems that while the Whren decision

sanctions objective reasonable police action based upon underlying motivations, the

ruling comports with traditional constitutional principles fashioned by the Court.

Having established the main avenues by which law enforcement officers may

conduct a valid vehicular seizure or investigatory detention, it is now necessary to

ascertain the scope of and nature of permissible police activity subsequent to a traffic

stop.

Post-Stop Conduct

As noted above, the reasonableness clause of the Fourth Amendment, as

interpreted in Terry, requires that any search or seizure subsequent to a traffic stop

"be reasonably related in scope to the circumstances which justified the interference

in the first place."32 However, employing the officer safety rationale which supported

the stop and frisk at issue in Terry, the Court has expanded the range of protective

measures officers may take in the traffic stop context. Recognizing that "investigative

detentions involving suspects in vehicles are especially fraught with danger," the

Court has ruled that law enforcement officers may order individuals to exit a vehicle,

search passenger compartments, and frisk individuals for weapons in certain

circumstances.33

Protective Searches. In Pennsylvania v. Mimms, the Supreme Court held that

law enforcement officers may order a driver to exit an automobile during a traffic

stop, and may conduct a frisk if there is a reasonable belief that the detained individual

is armed.34 In Mimms, two police officers observed the defendant driving with an

expired license plate. Upon stopping the vehicle, one of the officers directed the

defendant to exit the vehicle and produce his license and registration. As the

defendant exited the vehicle, one of the officers noticed a large bulge under the

defendant's clothing. Fearing that the bulge could be a weapon, the officer frisked the

defendant and discovered a loaded .38 caliber pistol. A passenger was subsequently

discovered to be in possession of a .32 caliber pistol. The defendant was arrested and

later convicted of unlawful possession of a firearm.35

Sharpe, 470 U.S. at 682 (quoting Terry, 392 U.S. at 20).

See Michigan v. Long, 463 U.S. 1032, 1047-1048 (1983).

434 U.S. 106, 110 (1977).

Id. at 107.

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Analyzing the constitutionality of the order requiring the defendant to exit the

vehicle, the Court noted that there is an "inordinate risk confronting an officer as he

approaches a person seated in an automobile," and that a significant portion of police

shootings involve suspects seated in automobiles.36 Furthermore, the Court

determined that asking a driver to exit a vehicle could also lessen the danger posed

by nearby moving traffic. Balancing these factors with the intrusiveness of an exit

request, the Court found that ordering an individual from a vehicle subsequent to a

lawful stop constitutes a de minimis imposition on personal liberty. In particular, the

Court explained that after being initially detained, the additional requirement that a

driver exit a vehicle exposes "little more of his person than is already exposed," and

does not constitute a "serious intrusion upon the sanctity of the person."37 In light of

this minimal intrusion, the Court declared that "a mere inconvenience cannot prevail

when balanced against legitimate concerns" for officer safety.38 Accordingly, the

Court held that law enforcement officers may order a driver to exit his vehicle

pursuant to a lawful traffic detention.39

The Court also determined that the frisk at issue was constitutionally valid. In

reaching this determination, the Court explained that, pursuant to Terry, the bulge

observed under the defendant's jacket provided a sufficient basis to suspect the

presence of a firearm. As such, the Court deemed the ensuing frisk to be a reasonable

action to ensure officer safety.40

Recently, in Maryland v. Wilson the Supreme Court extended upon its ruling in

Mimms, declaring that law enforcement officers could order passengers, as well as

drivers, to exit a vehicle detained in a valid traffic stop.41 In Wilson a police officer

pulled over a vehicle in which three persons were traveling. Upon noticing that the

front seat passenger was sweating and "appeared extremely nervous," the officer

ordered him out of the car. When the passenger exited the vehicle, crack cocaine fell

to the ground. The passenger was arrested and subsequently convicted of possession

of cocaine with intent to distribute.

Addressing the issue of whether passengers could be subjected to such police

action pursuant to a traffic detention, the Court pointed to the same officer safety

factors considered dispositive in Mimms.42 While acknowledging that, in the case of

passengers, the danger posed by incoming traffic would be lessened, the Court

determined that the presence of multiple occupants increased the danger posed to an

officer.43 The Court noted that passengers possessed a slightly stronger personal

liberty interest during a stop than does a driver, in that while probable cause may exist

Id. at 109-110.

Id. at 111.

Id. at 112.

519 U.S. 408, 415 (1997).

Id. at 413.

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to detain a driver, there is generally no justifiable cause to stop or detain passengers.

Noting that, as a practical matter, passengers were already stopped as a result of the

vehicle detention, the Court determined that an exit order constituted a minor

intrusion, as it would simply place a passenger outside of a vehicle which was already

detained.

Pursuant to this characterization, the Court determined that the safety concerns

at issue prevailed, since passengers ordered out of a vehicle would be denied access

to weapons concealed in the interior of the passenger compartment. This factor was

deemed especially pertinent by the Court, which surmised that a potential violent

encounter would not stem from the traffic stop itself, but, rather, from more sinister

criminal activity which might be uncovered by such a detention.44 Having determined

that the danger posed to an officer during a traffic stop is greater when passengers are

present, the Court held that an exit order constituted a minimal intrusion, allowing

officers conducting such stops to order passengers from vehicles pending completion

of the detention.45

The Wilson decision has also been criticized as an unreasonable extension of

police authority by potentially increasing the impact of the plain view exception and

encouraging arbitrary police action. Indeed, it has even been argued that the Wilson

decision will ultimately lead to the Court sanctioned detention of individuals upon a

general traffic stop.46 While the decision does indeed increase police authority in this

context, it is not apparent that any substantial Fourth Amendment rights have been

impinged. Indeed, the Court noted that the intrusion of an exit order appears minimal

when compared to concerns of officer safety.47 Also, it does not seem that the notion

that Wilson will expand the plain view doctrine is of any substantial significance in

search and seizure analysis, given that, by its nature, the plain view exception is

outside the purview of the Fourth Amendment.48 Rather, in the doctrinal sense, it

seems that Wilson, like Whren, serves mainly to illustrate the Court's preference for

objective Fourth Amendment standards. Furthermore, given the Court's matter-of-fact

analysis, Wilson could be regarded merely as the application of preexisting

constitutional standards to a new factual scenario.

The Supreme Court has also extended the Terry standard to permit protective

searches of the interior of an automobile in certain instances. In Michigan v. Long, for

instance, the Court held that limited protective searches are permissible in

circumstances where an officer reasonably believes that there may be a safety risk

from weapons potentially located within the vehicle and accessible by the detainee.

In Long, two police officers observed a car which was traveling erratically and at

excessive speed. As the officers observed the vehicle turn down a side road, it

swerved off into a ditch. Upon stopping to investigate, the officers were met by

Long, the only occupant, at the rear of the vehicle. The vehicle was projecting from

the ditch onto the road, and the driver's side door of the vehicle was open. Long failed

Id. at 414.

Id. at 414-415.

See Visser, supra n. 28, at 1726.

Id. at 413-414.

See n. 48, infra, and accompanying text.

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to respond initially when the officers requested his license, but ultimately complied.

When the officers then asked repeatedly to see his registration, Long again failed to

respond. After the officers made another production request, Long, whom the officers

now suspected of being under the influence, turned away from the officers and began

to walk toward the open door of the vehicle. The Officers followed Long and

observed a large knife on the floorboard of the driver's side of the vehicle. The

officers stopped Long from approaching the car and conducted a Terry frisk, which

revealed no weapons.

One of the officers stood with Long as the other visually inspected the interior

of the vehicle for other weapons. Upon noticing an item protruding from under the

armrest of the front seat, the officer knelt in the vehicle and lifted the armrest. The

item under the armrest was an open pouch, and, upon flashing a light into the pouch,

the officer determined that it contained marijuana. Long was then arrested. A

subsequent search of the vehicle's trunk revealed approximately 75 pounds of

marijuana.

Considering the question of whether the safety considerations of a Terry search

extended to a search of the passenger compartment of vehicle pursuant to a lawful

investigatory stop, the Supreme Court held that police protection principles compelled

the conclusion that such a search "is permissible if the police officer possesses a

reasonable belief based on 'specific and articulable facts which, taken together with

the rational inferences from those facts, reasonably warrant' the officers in believing

that the suspect is dangerous and the suspect may gain immediate control of

weapons."49

In reaching this determination, the Court reiterated its holdings in Mimms and

other cases which established that officers could conduct a constitutional stop and

frisk if a reasonable suspicion of potential danger existed. Given this standard, the

Court concluded that the same safety considerations adhered to interior areas of a

vehicle which might harbor weapons.50 The Court also made it clear that such a search

was justified, even though the suspect was, ostensibly, under the control of the

officers at the time of the protective search. Specifically, the Court explained that,

during the course of any investigative detention, a suspect is under police control only

"in the sense that he 'may be briefly detained against his will...'"51 As such, the Court

explained that a detained individual may still produce a weapon from his clothing, or

may break away from police control long enough to retrieve a weapon from the

interior of an automobile. Furthermore, the Court noted that a detained individual

could have access to weapons inside a car after the investigate stop is completed

absent a protective sweep of the interior.52 In light of these factors, the Court again

emphasized that safety considerations outweighed any potential Fourth Amendment

considerations stemming from such a sweep.

Id. at 1049 (quoting Terry, 392 U.S. at 21).

Id. at 1051. Furthermore, the Court stated that any contraband discovered in the course of

a protective search of an automobile's interior would be subject to seizure. Id. at 1050.

Id. at 1051 (quoting Terry, 392 U.S. at 34).

Id. at 1051-1052.

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Seizure of Items in Plain View. Another well established exception to the

warrant and probable cause requirements of the Fourth Amendment dictates that an

officer, acting pursuant to constitutional authority, may seize contraband or other

evidence of criminal activity which is in plain view.53 This exception applies not only

to the seizure of items in plain view, but also provides that the "mere observation of

an object without its seizure may contribute to the probable or reasonable suspicion

necessary to seize the object."54 Also, it has been determined that items exposed to

plain view are not within the ambit of Fourth Amendment protection. As such, upon

the inadvertent discovery of contraband pursuant to the plain view exception, no

warrant requirement adheres to its ensuing seizure.55

Given this dynamic, the impact of this exception in the traffic detention context

is substantial. The discovery of contraband in such a fashion imbues law enforcement

officers with the authority to effectuate a seizure, and may also provide probable

cause for a warrantless search.56 Furthermore, this exception has also been adapted

to allow for "plain touch" and "plain smell" seizures when illegality is immediately

apparent.57

Consent Searches. Law enforcement officers may also conduct a warrantless

search after obtaining voluntary consent, irrespective of probable cause or reasonable

suspicion.58 Consent so obtained may be either express or implied, and does not

necessarily have to be knowing and intelligent.59 Pursuant to this standard, the

Supreme Court has ruled that an officer is not required to inform a lawfully detained

driver that he is free to leave prior to requesting permission to search.60

In Ohio v. Robinette, a police officer stopped a vehicle for exceeding the speed

limit. During the course of the stop, the officer requested that the driver exit the

vehicle, whereupon the driver was given a warning and his license and registration

were returned. After this exchange, the officer asked the detainee if there was any

illegal contraband in the vehicle. The officer then explicitly requested permission to

search, and received consent. Upon conducting a search of the vehicle, the officer

Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Texas v. Brown, 460 U.S. 730, 738 (1983).

Id. at 740; See also, Katz v. United States, 389 U.S. 347, 361 (1967) (establishing that

items in plain view are not subject to the Fourth Amendment).

See Maryland v. Wilson; Michigan v. Long, supra.

See United States v. Downs, 151 F.3d 1301 (10th Cir. 1998).

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

Id. at 241. As opposed to waiver of rights in a trial setting, consent to a search and seizure

may be given unintentionally and without specific knowledge of the right to deny a search

request. Id. at 235-236. See Twenty-Eighth Annual Review of Criminal Procedure:

Warrantless Searches and Seizures, 87 Geo. L.J. 1124 (1999).

Ohio v. Robinette, 519 U.S. 33, 33-34 (1996).

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discovered illegal narcotics. The driver was subsequently arrested and charged with

possession of a controlled substance.61

The Supreme Court of Ohio had ruled that the search was violative of the Fourth

Amendment. In particular, the Ohio court determined that the legitimate traffic stop

concluded upon the issuance of the warning and return of the driver's license and

registration, rendering any further detention illegal.62 The Ohio Supreme Court found

that the subsequent search request could not be construed as a consensual encounter,

since most individuals believe they are still in custody "as long as the officer continues

to interrogate them."63 Accordingly, Ohio established a bright line rule, stating that

when the purpose of an initial stop is completed, the officer involved must inform the

individual that he or she is “legally free to go.”64

The Supreme Court of the United States reversed, declaring that law

enforcement officials do not have a constitutional duty under the Fourth Amendment

to inform individuals as to whether a particular police encounter is consensual.

Specifically, the Court explained that the central focus of any inquiry into such an

encounter must center on reasonableness, “measured in objective terms by examining

the totality of the circumstances.”65 Furthermore, the Court stressed that it “eschewed

bright-line rules” of the sort proposed by Ohio, finding it more appropriate to focus

on the “fact specific nature” of a reasonableness inquiry in the Fourth Amendment

context.66

Illustrating this approach, the Court discussed Schneckloth v. Bustamonte, where

it held that the validity of an individual’s consent to a vehicle search did not require

that the defendant know of his right to refuse such a request. Specifically, the Court

stated that “while knowledge of the right to refuse consent is one factor to be taken

into account, the government need not establish such knowledge as the sine qua non

of an effective consent.”67 The Court further explained that it "would be thoroughly

impractical to impose on the normal consent search the detailed requirements of an

effective warning."68 Applying this rationale to the case at hand, the Court in

Robinette declared that it would be "unrealistic to require police officers to always

inform detainees that they are free to go before a consent to search may be deemed

voluntary."69 The Court concluded its discussion by stressing again that the Fourth

Id. at 35-36.

State v. Robinette, 653 N.E.2d 695, 697 (Ohio 1995), rev’d, 519 U.S. 33 (1996)).

State v. Robinette, 653 N.E.2d at 698-699.

State v. Robinette, 653 N.E.2d at 699.

Ohio v. Robinette, 519 U.S. 33, 39 (1996) (citing Florida v. Jimeno, 500 U.S. 248, 250

(1991).

Robinette, 519 U.S. at 39.

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

Id. at 227.

Robinette, 519 U.S. at 40.

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Amendment test for valid search consent is whether such consent was voluntary, as

determined by a factual inquiry focusing on a totality of the circumstances.70

Search Incident to Arrest. The Supreme Court has also established that,

subsequent to a lawful custodial arrest, police may conduct a warrantless search of

an arrestee, irrespective of probable cause and reasonable suspicion to indicate the

presence of either weapons or evidence.71 Unlike the limited focus of a Terry stop and

frisk, police may make a full search for weapons and evidence in a search conducted

incident to a valid arrest.72 Furthermore, in Chimel v. California, the Supreme Court

ruled that police could also search the area within the immediate control of an

arrestee, explaining that the scope of such a search was necessary to ensure officer

safety and maintain evidence integrity.73 In New York v. Belton, the Court extended

the scope of its ruling in Chimel, holding that a custodial arrest imbued police with

the power to conduct a search of the passenger compartment of an automobile.

Specifically, the Court declared that authorities may search the passenger

compartment and any containers located therein, even after establishing exclusive

custody over the vehicle and arrestee.74

From the aforementioned cases, it is evident that the Supreme Court has placed

significant weight on officer safety considerations in delineating the scope of police

power to conduct searches and seizures in the traffic stop context. As noted these

decisions have led many legal scholars to the conclusion that the Court has established

a strong law enforcement preference in Fourth Amendment issues, impinging upon

personal liberty interests guaranteed under the Constitution. While these may be valid

concerns, it is important to note that the Court continues to operate within traditional

Fourth Amendment parameters. This is illustrated in the search incident to arrest

context in the recent case of Knowles v. Iowa.75

In Knowles v. Iowa, the United States Supreme Court overturned a ruling from

the Supreme Court of Iowa, which had validated a police officer's warrantless search

of an automobile stopped for a traffic violation, even though the driver was not

arrested for the offense, but, rather, had merely been issued a citation. The Iowa

Supreme Court validated the search on the basis that "so long as the arresting officer

had probable cause to make a custodial arrest, there need not in fact have been a

Id.

New York v. Belton, 453 U.S. 454 (1981); United States v. Robinson, 414 U.S. 218 (1973).

See Robinson, 414 U.S. at 229.

395 U.S. 752, 763 (1969).

Belton, 453 U.S. at 460. According to the Court, the term container refers to any object

capable of holding another object, including "closed or open glove compartments, consoles or

other receptacles located anywhere within the passenger compartment, as well as luggage,

boxes, bags, clothing and the like." Id. The Court clarified the scope of its holding, noting that

authority to search did not extend to the trunk of an automobile. Id. However, a search of the

hatch area of an automobile has been upheld due to the accessibility of such an area from the

passenger area. See United States v. Doward, 41 F.3d 789, 794 (1st Cir. 1994).

119 S.Ct. 484 (1998).

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custodial arrest."76 The Supreme Court of the United States, noting that none of the

justifications supporting searches incident to arrest adhere to a typical traffic stop,

held that the police action was violative of the Fourth Amendment. Specifically, the

Court explained that the officer safety rationale was not applicable, in that the threat

posed by the issuance of a traffic citation is substantially less than in the custodial

arrest context, which is of special concern given "the extended exposure which

follows the taking of suspect into custody and transporting him to the police

station."77 Clarifying this point, the Court stated that while safety concerns are present

in a routine traffic stop, they do not justify the significant intrusion effected by a full

search. Rather, the Court found it significant that officers possess other means by

which they may protect themselves, such as ordering individuals to exit vehicles, and

to conduct Terry frisks and searches where justified.78 Furthermore, the Court

declared that a "search incident to citation" exception to the Fourth Amendment could

not be justified by a need to preserve evidence, since once an individual is stopped and

issued a citation, "all evidence necessary to prosecute that offense has been

obtained."79 The Court also declared that such a search could not be justified on the

basis that an individual stopped for a traffic offense might destroy evidence of another

crime, noting that the possibility of discovering evidence unrelated to a traffic offense

was too remote.80

Conclusion

In light of the aforementioned cases, it is evident that the Supreme Court has

crafted significant exceptions to the warrant and probable cause requirements of the

Fourth Amendment in the traffic detention context. As has been shown, recent

decisions in particular have arguably expanded the scope of law enforcement power

leading some commentators to declare that the Fourth Amendment has been all but

abrogated in the vehicular context.

However, while cases such as Whren and Wilson show that the Court has indeed

clarified and sanctioned greater protective and investigative police authority in the

traffic context, it is important to remember that these rulings have been predicated

upon well settled constitutional principles. Furthermore, the Court's decision in

Knowles establishes that the same rationales supporting extensions of law enforcement

authority also serve to circumscribe police power. As such, it seems that while police

officers do indeed possess broad authority under these decisions, the Court's rulings

have adhered to the basic principles which fostered the initial development of the

exceptions discussed above. As such, rather than forging new doctrinal interpretations

of Fourth Amendment boundaries and exceptions, it appears that the Court has

applied settled constitutional principles to previously unencountered factual scenarios,

expanding police power in certain respects, while restricting it in others.

Id. at 487.

Id. at 488 (quoting United States v. Robinson, 414 U.S. 218, 234-235 (1973)).

Knowles, 119 S.Ct. at 488.

Id. at 488.

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