Car Wars: The Fourth Amendment's Death on the Highway

George Washington Law Review

Volumn 66, Issue 3, 1998, Pages 556-591

  Harris, David A ^a,b,c  

^a UNIVERSITY OF TOLEDO   (United States)

^b YALE UNIVERSITY   (United States)

^c NONE

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EID: 0032366626     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (408)

1. 116 S. Ct. 1769 (1996).
2. See id. at 1776-77.
3. See id. at 1774-75; see also infra notes 20-23 and accompanying text.
4. 117 S. Ct. 417 (1996).
5. See id. at 421; infra notes 51-55 and accompanying text.
6. 117 S. Ct. 882 (1997).
7. See Pennsylvania v. Mimms, 434 U.S. 106, 111 & n.6 (1977) (per curiam) (holding that ordering a lawfully detained driver out of a vehicle is reasonable and permissible under the Fourth Amendment).
8. See Wilson, 117 S. Ct. at 885-86; infra notes 58-76 and accompanying text.
9. The principle behind this statement might be stated more broadly in terms of Justice Brandeis's characterization of the Fourth Amendment as the right to be left alone: [The makers of our Constitution] conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). As Professor LaFave has put it, "arbitrary action is unreasonable under the Fourth Amendment." WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 1.4(e), at 122 (3d ed. 1996); see also Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 197 (1993) (stating that at the core of Fourth Amendment lies restraint on government power).
10. The principle behind this statement might be stated more broadly in terms of Justice Brandeis's characterization of the Fourth Amendment as the right to be left alone: [The makers of our Constitution] conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). As Professor LaFave has put it, "arbitrary action is unreasonable under the Fourth Amendment." WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 1.4(e), at 122 (3d ed. 1996); see also Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 197 (1993) (stating that at the core of Fourth Amendment lies restraint on government power).
11. The principle behind this statement might be stated more broadly in terms of Justice Brandeis's characterization of the Fourth Amendment as the right to be left alone: [The makers of our Constitution] conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). As Professor LaFave has put it, "arbitrary action is unreasonable under the Fourth Amendment." WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, § 1.4(e), at 122 (3d ed. 1996); see also Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 197 (1993) (stating that at the core of Fourth Amendment lies restraint on government power).
12. See Carroll v. United States, 267 U.S. 132, 153-54 (1925).
13. See infra note 21.
14. 116 S. Ct. 1769 (1996).
15. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
16. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
17. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
18. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
19. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
20. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
21. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
22. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
23. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
24. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
25. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
26. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
27. Some federal circuits had ruled that any time an officer could have made a traffic stop based on a traffic infraction, it was legitimate for the officer to do so. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995); United States v. Whren, 53 F.3d 371, 374-75 (D.C. Cir. 1995), aff'd, 116 S. Ct. 1769 (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc); United States v. Hassan El, 5 F.3d 726, 729-30 (4th Cir. 1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990); United States v. Trigg, 878 F.2d 1037,1041 (7th Cir. 1989); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). Two other circuits had ruled that a traffic stop was sufficient to constitute probable cause only when a reasonable officer would have made the stop. See United States v. Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996); United States v. Smith, 799 F.2d 704, 708-09 (11th Cir. 1986), abrogated by Whren v. United States, 116 S. Ct. 1769 (1996).
28. See Whren, 116 S. Ct. at 1771-72.
29. See id.
30. See id.
31. See id. A contrary conclusion can only come from the men's youth, the nature of their vehicle, "a dark Pathfinder," and that the driver looked toward the passenger's lap. Id. The lead officer testified that police stopped the car not to investigate their suspicions, but only to speak to the driver about his driving. See Petitioner's Brief at 5-7, Whren (No. 95-5841).
32. See Whren, 116 S. Ct. at 1772.
33. See id. at 1773-77. The defendants in Whren proposed that the rule should be "whether a police officer, acting reasonably, would have made the stop for the reason given." Id. at 1773.
34. See infra note 108 and accompanying text.
35. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 137 (1997) (arguing that police and others "use race as a proxy for an increased risk of criminality"); David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 572 (1997) (stating that disproportionate use of traffic stops against African Americans indicates that police "are using race as a proxy for the criminality or 'general criminal propensity' of an entire racial group"); Sherri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214, 220, 236-39 (1983) (stating that police use minority race as a proxy for a greater possibility of criminal involvement, even though it is problematic at best).
36. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 137 (1997) (arguing that police and others "use race as a proxy for an increased risk of criminality"); David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 572 (1997) (stating that disproportionate use of traffic stops against African Americans indicates that police "are using race as a proxy for the criminality or 'general criminal propensity' of an entire racial group"); Sherri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214, 220, 236-39 (1983) (stating that police use minority race as a proxy for a greater possibility of criminal involvement, even though it is problematic at best).
37. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 137 (1997) (arguing that police and others "use race as a proxy for an increased risk of criminality"); David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 572 (1997) (stating that disproportionate use of traffic stops against African Americans indicates that police "are using race as a proxy for the criminality or 'general criminal propensity' of an entire racial group"); Sherri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214, 220, 236-39 (1983) (stating that police use minority race as a proxy for a greater possibility of criminal involvement, even though it is problematic at best).
38. See Whren, 116 S. Ct. at 1774 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.").
39. See id. at 1776-77.
40. See, e.g., MD. CODE ANN., TRANSP. II § 21-604(d) (1992) (requiring that a signal must "be given continuously during . . . the last 100 feet . . . before turning"); N.M. STAT. ANN. § 66-7-325B (Michie 1994) (same); OHIO REV. CODE ANN. § 4511.39 (Anderson 1997) (same); S.C. CODE ANN. § 56-5-2150(b) (Law Co-op. 1991) (same).
41. See, e.g., KY. REV. STAT. ANN. § 189.030(1) (Banks-Baldwin 1995) ("Lights . . . shall be illuminated during the period from one-half (1/2) hour after sunset to one-half (1/2) hour before sunrise, and at such other times as atmospheric conditions render visibility as low as or lower than is ordinarily the case during that period."); NEB. REV. STAT. ANN. § 60-6,219(1) (Michie 1995) (requiring that lights be used "from sunset to sunrise and at any other time when there is not sufficient light" for drivers to see persons or vehicles 500 feet away); VA. CODE ANN. § 46.2-1030 (Michie 1996 & Supp. 1997) (requiring that lights be used "from sunset to sunrise [and] during any other time when, because of rain, smoke, fog, snow, sleet, insufficient light, or other unfavorable atmospheric conditions," drivers cannot see to a distance of 500 feet, but not in "instances when windshield wipers are used intermittently in misting rain, snow, or sleet").
42. See, e.g., KY. REV. STAT. ANN. § 189.030(1) (Banks-Baldwin 1995) ("Lights . . . shall be illuminated during the period from one-half (1/2) hour after sunset to one-half (1/2) hour before sunrise, and at such other times as atmospheric conditions render visibility as low as or lower than is ordinarily the case during that period."); NEB. REV. STAT. ANN. § 60-6,219(1) (Michie 1995) (requiring that lights be used "from sunset to sunrise and at any other time when there is not sufficient light" for drivers to see persons or vehicles 500 feet away); VA. CODE ANN. § 46.2-1030 (Michie 1996 & Supp. 1997) (requiring that lights be used "from sunset to sunrise [and] during any other time when, because of rain, smoke, fog, snow, sleet, insufficient light, or other unfavorable atmospheric conditions," drivers cannot see to a distance of 500 feet, but not in "instances when windshield wipers are used intermittently in misting rain, snow, or sleet").
43. See, e.g., KY. REV. STAT. ANN. § 189.030(1) (Banks-Baldwin 1995) ("Lights . . . shall be illuminated during the period from one-half (1/2) hour after sunset to one-half (1/2) hour before sunrise, and at such other times as atmospheric conditions render visibility as low as or lower than is ordinarily the case during that period."); NEB. REV. STAT. ANN. § 60-6,219(1) (Michie 1995) (requiring that lights be used "from sunset to sunrise and at any other time when there is not sufficient light" for drivers to see persons or vehicles 500 feet away); VA. CODE ANN. § 46.2-1030 (Michie 1996 & Supp. 1997) (requiring that lights be used "from sunset to sunrise [and] during any other time when, because of rain, smoke, fog, snow, sleet, insufficient light, or other unfavorable atmospheric conditions," drivers cannot see to a distance of 500 feet, but not in "instances when windshield wipers are used intermittently in misting rain, snow, or sleet").
44. See, e.g., WASHINGTON, D.C., MUN. REGS. tit. 18, § 2200.3 (1995).
45. See, e.g., MD. CODE ANN., TRANSP. II § 22-204(a), (f) (1992) ("Every motor vehicle . . . shall be equipped with at least 2 tail lamps mounted on the rear [which shall be] visible from a distance of 1,000 feet to the rear" and "a white light" that will illuminate the rear registration plate "and render it clearly legible from a distance of fifty feet"); N.D. CENT. CODE § 39-21-04(1), (3) (1992) (requiring vehicles to have "at least one tail lamp mounted on the rear . . . plainly visible from a distance of one thousand feet" and "a white light" illuminating "the rear registration place[, rendering] it clearly legible from a distance of fifty feet"); S.C. CODE ANN. § 56-5-4510 (Law Co-op. 1991) (requiring at least one tail light to be visible from 500 feet).
46. See, e.g., MD. CODE ANN., TRANSP. II § 22-204(a), (f) (1992) ("Every motor vehicle . . . shall be equipped with at least 2 tail lamps mounted on the rear [which shall be] visible from a distance of 1,000 feet to the rear" and "a white light" that will illuminate the rear registration plate "and render it clearly legible from a distance of fifty feet"); N.D. CENT. CODE § 39-21-04(1), (3) (1992) (requiring vehicles to have "at least one tail lamp mounted on the rear . . . plainly visible from a distance of one thousand feet" and "a white light" illuminating "the rear registration place[, rendering] it clearly legible from a distance of fifty feet"); S.C. CODE ANN. § 56-5-4510 (Law Co-op. 1991) (requiring at least one tail light to be visible from 500 feet).
47. See, e.g., MD. CODE ANN., TRANSP. II § 22-204(a), (f) (1992) ("Every motor vehicle . . . shall be equipped with at least 2 tail lamps mounted on the rear [which shall be] visible from a distance of 1,000 feet to the rear" and "a white light" that will illuminate the rear registration plate "and render it clearly legible from a distance of fifty feet"); N.D. CENT. CODE § 39-21-04(1), (3) (1992) (requiring vehicles to have "at least one tail lamp mounted on the rear . . . plainly visible from a distance of one thousand feet" and "a white light" illuminating "the rear registration place[, rendering] it clearly legible from a distance of fifty feet"); S.C. CODE ANN. § 56-5-4510 (Law Co-op. 1991) (requiring at least one tail light to be visible from 500 feet).
48. See, e.g., S.C. CODE ANN. § 56-5-5350(a) (Law Co-op. 1991) ("No person shall drive . . . any vehicle . . . unless there shall be in effect and properly displayed thereon a current certificate of inspection.").
49. See, e.g., KY. REV. STAT. ANN. § 189.140 (Banks-Baldwin 1995) (requiring every vehicle to "be equipped with a suitable and efficient muffler" that cannot be modified to amplify noise and that must comply with applicable muffler regulations); N.J. STAT. ANN. § 39:3-70 (West 1990) (requiring all vehicles with combustion engines to "be equipped with a muffler in good working order . . . to prevent excessive or unusual noise"); VA. CODE ANN. § 46.2-1049 (Michie 1996) (requiring all vehicles to be equipped with an exhaust system of the type used "as standard factory equipment" that will "prevent excessive or unusual noise").
50. See, e.g., KY. REV. STAT. ANN. § 189.140 (Banks-Baldwin 1995) (requiring every vehicle to "be equipped with a suitable and efficient muffler" that cannot be modified to amplify noise and that must comply with applicable muffler regulations); N.J. STAT. ANN. § 39:3-70 (West 1990) (requiring all vehicles with combustion engines to "be equipped with a muffler in good working order . . . to prevent excessive or unusual noise"); VA. CODE ANN. § 46.2-1049 (Michie 1996) (requiring all vehicles to be equipped with an exhaust system of the type used "as standard factory equipment" that will "prevent excessive or unusual noise").
51. See, e.g., KY. REV. STAT. ANN. § 189.140 (Banks-Baldwin 1995) (requiring every vehicle to "be equipped with a suitable and efficient muffler" that cannot be modified to amplify noise and that must comply with applicable muffler regulations); N.J. STAT. ANN. § 39:3-70 (West 1990) (requiring all vehicles with combustion engines to "be equipped with a muffler in good working order . . . to prevent excessive or unusual noise"); VA. CODE ANN. § 46.2-1049 (Michie 1996) (requiring all vehicles to be equipped with an exhaust system of the type used "as standard factory equipment" that will "prevent excessive or unusual noise").
52. See, e.g., MD. CODE ANN., TRANSP. II § 22-405.5(b) (1992) (stating that a tire is "considered unsafe if . . . tread wear indicators are flush with the tread at any place on the tire" or, in the absence of tread wear indicators, if the tire does not meet precise measurements at three locations on the tire); S.C. CODE ANN. § 56-5-5040 (Law Co-op. 1991) (requiring that tires "be in a safe operating condition").
53. See, e.g., MD. CODE ANN., TRANSP. II § 22-405.5(b) (1992) (stating that a tire is "considered unsafe if . . . tread wear indicators are flush with the tread at any place on the tire" or, in the absence of tread wear indicators, if the tire does not meet precise measurements at three locations on the tire); S.C. CODE ANN. § 56-5-5040 (Law Co-op. 1991) (requiring that tires "be in a safe operating condition").
54. See supra notes 22-23 and accompanying text.
55. Even Terry v. Ohio, 392 U.S. 1 (1968), which allows certain types of limited intrusions based on the less-than-probable-cause reasonable suspicion standard, requires more than an officer's "inchoate and unparticularized suspicion or 'hunch,' [instead, it requires] the specific, reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience" that criminal activity is afoot. Id. at 27.
56. See infra notes 99-121 and accompanying text.
57. See Harris, supra note 21, at 560.
58. See Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425, 431 (1997) ("Empirical evidence suggests that race is frequently the defining factor in pretextual traffic stops."); Harris, supra note 21, at 560-73 (finding evidence that traffic stops are used disproportionately against minority group members); see also Carol M. Bast, The Plight of the Minority Motorist, 39 N.Y.L. SCH. L. REV. 49, 50-51 & n.7 (1994) (giving examples of "abusive application of civil asset forfeiture" against "minority motorists"); infra notes 182-210 and accompanying text.
59. See Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425, 431 (1997) ("Empirical evidence suggests that race is frequently the defining factor in pretextual traffic stops."); Harris, supra note 21, at 560-73 (finding evidence that traffic stops are used disproportionately against minority group members); see also Carol M. Bast, The Plight of the Minority Motorist, 39 N.Y.L. SCH. L. REV. 49, 50-51 & n.7 (1994) (giving examples of "abusive application of civil asset forfeiture" against "minority motorists"); infra notes 182-210 and accompanying text.
60. See Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425, 431 (1997) ("Empirical evidence suggests that race is frequently the defining factor in pretextual traffic stops."); Harris, supra note 21, at 560-73 (finding evidence that traffic stops are used disproportionately against minority group members); see also Carol M. Bast, The Plight of the Minority Motorist, 39 N.Y.L. SCH. L. REV. 49, 50-51 & n.7 (1994) (giving examples of "abusive application of civil asset forfeiture" against "minority motorists"); infra notes 182-210 and accompanying text.
61. See Harris, supra note 21, at 561-66 (finding that statistics covering hundreds of drivers in Florida and Maryland showed that African Americans and Hispanics made up more than 70% of those stopped).
62. See Whren v. United States, 116 S. Ct. 1769, 1773-74 (1996).
63. See id. at 1774.
64. See id. at 1777.
65. 117 S. Ct. 417 (1996).
66. See id. at 419.
67. See id. The officer asked, "'One question before you get gone: [A]re you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?'" Id. (alteration in original) (quoting Appendix to Respondent's Brief at 2, Robinette (No.95-891)).
68. See id.
69. See id.
70. See id.
71. See id. The Ohio Court of Appeals reversed the trial court's finding of guilt, because the evidence was found during a search that resulted from an unlawful detention. See State v. Robinette, No. 14074, 1994 WL 147806, at *2 (Ohio Ct. App. Apr. 15, 1994), aff'd, 653 N.E.2d 695 (Ohio 1995), rev'd, 117 S. Ct. 417 (1996).
72. See id. The Ohio Court of Appeals reversed the trial court's finding of guilt, because the evidence was found during a search that resulted from an unlawful detention. See State v. Robinette, No. 14074, 1994 WL 147806, at *2 (Ohio Ct. App. Apr. 15, 1994), aff'd, 653 N.E.2d 695 (Ohio 1995), rev'd, 117 S. Ct. 417 (1996).
73. See id. The Ohio Court of Appeals reversed the trial court's finding of guilt, because the evidence was found during a search that resulted from an unlawful detention. See State v. Robinette, No. 14074, 1994 WL 147806, at *2 (Ohio Ct. App. Apr. 15, 1994), aff'd, 653 N.E.2d 695 (Ohio 1995), rev'd, 117 S. Ct. 417 (1996).
74. Robinette, 117 S. Ct. at 419-20 (quoting State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995), rev'd, 117 S. Ct. 417 (1996)).
75. See id. at 419 (characterizing the issue as "whether the Fourth Amendment requires that a lawfully seized defendant must be advised that he is 'free to go' before his consent to search will be recognized as voluntary").
76. See id.
77. 412 U.S. 218 (1973).
78. See Robinette, 117 S. Ct. at 421 (citing Schneckloth, 412 U.S. at 227).
79. Id.
80. Id. (quoting Schneckloth, 412 U.S. at 248-49).
81. See id.
82. See id.
83. See id.
84. See supra notes 35-38 and accompanying text.
85. 117 S. Ct. 882 (1997).
86. See id. at 884.
87. See id.
88. See id.
89. See id.
90. See id.
91. Maryland v. Wilson, 664 A.2d 1, 15 (Md. Ct. Spec. App. 1995), rev'd, 117 S. Ct. 882 (1997). The state's highest court, the Court of Appeals of Maryland, denied certiorari. See State v. Wilson, 667 A.2d 342 (Md. 1995).
92. Maryland v. Wilson, 664 A.2d 1, 15 (Md. Ct. Spec. App. 1995), rev'd, 117 S. Ct. 882 (1997). The state's highest court, the Court of Appeals of Maryland, denied certiorari. See State v. Wilson, 667 A.2d 342 (Md. 1995).
93. 434 U.S. 106 (1977).
94. See id. at 111; see also Wilson, 117 S. Ct. at 884, 885 (characterizing Mimms as saying that a police officer may "'as a matter of course order'" the driver of a lawfully stopped car to exit the vehicle even though, there has been "nothing unusual or suspicious to justify ordering [the driver] out of the car" (quoting Mimms, 434 U.S. at 109-10)).
95. See Wilson, 117 S. Ct. at 885 (citing Mimms, 434 U.S. at 109).
96. See id.
97. See id.
98. See id. at 886.
99. See id.
100. See id.
101. See id. at 885 ("In 1994 alone, there were 5762 officer assaults and 11 officers killed during traffic pursuits and stops.") (citation omitted).
102. See id.
103. See id. at 885 n.2. The Court conceded the dissent's point that the statistics were "not further broken down as to assaults by passengers and assaults by drivers," but nevertheless said that "we need not ignore the data which do exist simply because further refinement would be even more helpful." Id. This, of course, assumes that statistics that do not support the Court's assertion are, in some way, "helpful." In the last phrase of the note, the Court makes it obvious that it is doing nothing more than making a result-oriented policy decision: "[W]e believe that our holding today is more likely to accomplish [a reduction in assaults on officers] than would be the case if [the dissent's] views were to prevail." Id. at 886 n.2.
104. See id. at 885 n.2. The Court conceded the dissent's point that the statistics were "not further broken down as to assaults by passengers and assaults by drivers," but nevertheless said that "we need not ignore the data which do exist simply because further refinement would be even more helpful." Id. This, of course, assumes that statistics that do not support the Court's assertion are, in some way, "helpful." In the last phrase of the note, the Court makes it obvious that it is doing nothing more than making a result-oriented policy decision: "[W]e believe that our holding today is more likely to accomplish [a reduction in assaults on officers] than would be the case if [the dissent's] views were to prevail." Id. at 886 n.2.
105. Id. at 886. The only difference for the passengers, the Court said, was that they would now be detained outside the car, rather than inside it. See id.
106. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996).
107. See Wilson, 117 S. Ct. at 885-86.
108. See supra note 13.
109. See infra Part II.B.
110. See Carroll v. United States, 267 U.S. 132, 153 (1925) (holding that the mobility of vehicles justifies an exception to the warrant requirement if there is probable cause).
111. See infra note 93.
112. See infra note 94.
113. Of course, the Court has allowed some types of investigation without individual suspicion in past cases, as long as there is a "special governmental need" beyond ordinary law enforcement. See, e.g., Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990) (holding that brief intrusions at sobriety checkpoints were justified by a special governmental need to address the drunk driving problem). My argument here is that individuals are being investigated, sometimes in very intrusive ways, without any such special governmental need. This, of course, implies that the requirements of probable cause and reasonable suspicion, thin though they might be, no longer apply in these situations.
114. See Carroll, 267 U.S. at 153, 160, 162 (stating that the search of a vehicle without a warrant was valid because the defendants' previous offer to sell illegal liquor to federal agents gave officers probable cause to believe that the vehicle contained contraband).
115. California v. Carney, 471 U.S. 386, 390 (1985) ("[O]ur cases have consistently recognized ready mobility as one of the principal bases of the automobile exception.").
116. See Carroll, 267 U.S. at 153 (holding that a warrantless search of a vehicle is justified "where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the . . . jurisdiction"). Note, however, that probable cause was still required. See id. at 149.
117. See Pennsylvania v. Labron, 116 S. Ct. 2485, 2487 (1996) (holding that ready mobility and probable cause to believe that a vehicle contains contraband permit a warrantless search); Carney, 471 U.S. at 392-94 (extending inherent mobility to a mobile home, as long as "the vehicle [is] so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle"); United States v. Ross, 456 U.S. 798, 804-09 (1982) (holding that the police may conduct a warrantless search of a vehicle if they have probable cause to believe that contraband is concealed in it); Chambers v. Maroney, 399 U.S. 42, 44, 52 (1970) (finding the warrantless search of a vehicle valid because police had probable cause to believe that the car contained evidence of robbery).
118. See Pennsylvania v. Labron, 116 S. Ct. 2485, 2487 (1996) (holding that ready mobility and probable cause to believe that a vehicle contains contraband permit a warrantless search); Carney, 471 U.S. at 392-94 (extending inherent mobility to a mobile home, as long as "the vehicle [is] so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle"); United States v. Ross, 456 U.S. 798, 804-09 (1982) (holding that the police may conduct a warrantless search of a vehicle if they have probable cause to believe that contraband is concealed in it); Chambers v. Maroney, 399 U.S. 42, 44, 52 (1970) (finding the warrantless search of a vehicle valid because police had probable cause to believe that the car contained evidence of robbery).
119. See Pennsylvania v. Labron, 116 S. Ct. 2485, 2487 (1996) (holding that ready mobility and probable cause to believe that a vehicle contains contraband permit a warrantless search); Carney, 471 U.S. at 392-94 (extending inherent mobility to a mobile home, as long as "the vehicle [is] so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle"); United States v. Ross, 456 U.S. 798, 804-09 (1982) (holding that the police may conduct a warrantless search of a vehicle if they have probable cause to believe that contraband is concealed in it); Chambers v. Maroney, 399 U.S. 42, 44, 52 (1970) (finding the warrantless search of a vehicle valid because police had probable cause to believe that the car contained evidence of robbery).
120. See Pennsylvania v. Labron, 116 S. Ct. 2485, 2487 (1996) (holding that ready mobility and probable cause to believe that a vehicle contains contraband permit a warrantless search); Carney, 471 U.S. at 392-94 (extending inherent mobility to a mobile home, as long as "the vehicle [is] so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle"); United States v. Ross, 456 U.S. 798, 804-09 (1982) (holding that the police may conduct a warrantless search of a vehicle if they have probable cause to believe that contraband is concealed in it); Chambers v. Maroney, 399 U.S. 42, 44, 52 (1970) (finding the warrantless search of a vehicle valid because police had probable cause to believe that the car contained evidence of robbery).
121. Arkansas v. Sanders, 442 U.S. 753, 761 (1979), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991) ; see New York v. Class, 475 U.S. 106, 112-13 (1986) (holding that the warrantless search of a vehicle is justified by the reduced expectation of privacy found in the physical characteristics and pervasive regulation of automobiles); United States v. Chadwick, 433 U.S. 1, 12-13 (1977) (holding that a warrantless search is justified by lower expectations of privacy because a vehicle seldom becomes a residence or a repository of personal effects, occupants and contents are generally in plain view, and all aspects of vehicles and their operation are strictly regulated), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). Note that all of these cases also were based on the inherent mobility justification.
122. Arkansas v. Sanders, 442 U.S. 753, 761 (1979), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991) ; see New York v. Class, 475 U.S. 106, 112-13 (1986) (holding that the warrantless search of a vehicle is justified by the reduced expectation of privacy found in the physical characteristics and pervasive regulation of automobiles); United States v. Chadwick, 433 U.S. 1, 12-13 (1977) (holding that a warrantless search is justified by lower expectations of privacy because a vehicle seldom becomes a residence or a repository of personal effects, occupants and contents are generally in plain view, and all aspects of vehicles and their operation are strictly regulated), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). Note that all of these cases also were based on the inherent mobility justification.
123. Arkansas v. Sanders, 442 U.S. 753, 761 (1979), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991) ; see New York v. Class, 475 U.S. 106, 112-13 (1986) (holding that the warrantless search of a vehicle is justified by the reduced expectation of privacy found in the physical characteristics and pervasive regulation of automobiles); United States v. Chadwick, 433 U.S. 1, 12-13 (1977) (holding that a warrantless search is justified by lower expectations of privacy because a vehicle seldom becomes a residence or a repository of personal effects, occupants and contents are generally in plain view, and all aspects of vehicles and their operation are strictly regulated), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). Note that all of these cases also were based on the inherent mobility justification.
124. Arkansas v. Sanders, 442 U.S. 753, 761 (1979), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991) ; see New York v. Class, 475 U.S. 106, 112-13 (1986) (holding that the warrantless search of a vehicle is justified by the reduced expectation of privacy found in the physical characteristics and pervasive regulation of automobiles); United States v. Chadwick, 433 U.S. 1, 12-13 (1977) (holding that a warrantless search is justified by lower expectations of privacy because a vehicle seldom becomes a residence or a repository of personal effects, occupants and contents are generally in plain view, and all aspects of vehicles and their operation are strictly regulated), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). Note that all of these cases also were based on the inherent mobility justification.
125. Arkansas v. Sanders, 442 U.S. 753, 761 (1979), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991) ; see New York v. Class, 475 U.S. 106, 112-13 (1986) (holding that the warrantless search of a vehicle is justified by the reduced expectation of privacy found in the physical characteristics and pervasive regulation of automobiles); United States v. Chadwick, 433 U.S. 1, 12-13 (1977) (holding that a warrantless search is justified by lower expectations of privacy because a vehicle seldom becomes a residence or a repository of personal effects, occupants and contents are generally in plain view, and all aspects of vehicles and their operation are strictly regulated), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). Note that all of these cases also were based on the inherent mobility justification.
126. 471 U.S. 386 (1985).
127. See id. at 393 (stating that a mobile home has "a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling").
128. Id. at 402 (Stevens, J., dissenting).
129. Id. at 393.
130. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 885-86 (1997) (stating that the "weighty interest" in officer safety during traffic stops outweighs the personal liberty interests of passengers); Michigan v. Long, 463 U.S. 1032, 1046-50 (1983) (stating that a Terry-type search of a vehicle is permissible if police have reasonable suspicion that a suspect in a roadside stop poses a danger); New York v. Belton, 453 U.S. 454, 460 (1981) (finding that the ease with which vehicle occupants can grab hidden weapons justifies a bright line rule allowing the search of the entire passenger compartment and all containers when an arrest takes place); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (finding that dangers inherent in traffic stops are great and outweigh the liberty interests of drivers).
131. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 885-86 (1997) (stating that the "weighty interest" in officer safety during traffic stops outweighs the personal liberty interests of passengers); Michigan v. Long, 463 U.S. 1032, 1046-50 (1983) (stating that a Terry-type search of a vehicle is permissible if police have reasonable suspicion that a suspect in a roadside stop poses a danger); New York v. Belton, 453 U.S. 454, 460 (1981) (finding that the ease with which vehicle occupants can grab hidden weapons justifies a bright line rule allowing the search of the entire passenger compartment and all containers when an arrest takes place); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (finding that dangers inherent in traffic stops are great and outweigh the liberty interests of drivers).
132. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 885-86 (1997) (stating that the "weighty interest" in officer safety during traffic stops outweighs the personal liberty interests of passengers); Michigan v. Long, 463 U.S. 1032, 1046-50 (1983) (stating that a Terry-type search of a vehicle is permissible if police have reasonable suspicion that a suspect in a roadside stop poses a danger); New York v. Belton, 453 U.S. 454, 460 (1981) (finding that the ease with which vehicle occupants can grab hidden weapons justifies a bright line rule allowing the search of the entire passenger compartment and all containers when an arrest takes place); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (finding that dangers inherent in traffic stops are great and outweigh the liberty interests of drivers).
133. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 885-86 (1997) (stating that the "weighty interest" in officer safety during traffic stops outweighs the personal liberty interests of passengers); Michigan v. Long, 463 U.S. 1032, 1046-50 (1983) (stating that a Terry-type search of a vehicle is permissible if police have reasonable suspicion that a suspect in a roadside stop poses a danger); New York v. Belton, 453 U.S. 454, 460 (1981) (finding that the ease with which vehicle occupants can grab hidden weapons justifies a bright line rule allowing the search of the entire passenger compartment and all containers when an arrest takes place); Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (finding that dangers inherent in traffic stops are great and outweigh the liberty interests of drivers).
134. See, e.g., Long, 463 U.S. at 1046-50 (stating that the chief reason for allowing a search is the danger to officers, not reducing privacy interests).
135. See Whren v. United States, 116 S. Ct. 1769, 1776-77 (1996). In order to forcibly stop someone - that is, order the person to stop, as opposed to simply asking if they would mind doing so - police need probable cause to believe that a crime has been committed and that the suspect is involved. See Illinois v. Gates, 462 U.S. 213, 227 (1983). In Gates, the Court stated that probable cause is not "reduc[ible] to a neat set of legal rules," id. at 232, and is more correctly defined as relying on "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Gates also denned the concept as "a fair probability that contraband or evidence of a crime will be found," based on "the totality-of-the-circumstances." Id. at 238. The police may also stop someone based on reasonable suspicion. See Terry y. Ohio, 392 U.S. 1, 27 (1967) (requiring something more than an officer's "inchoate and unparticularized suspicion or 'hunch'"); Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less demanding standard than probable cause . . . ."). This generally means that a police officer must witness some activity that is indicative of crime. The Whren case changes this for anyone in a car. To be sure, probable cause is st ill required in the form of an observed traffic violation. But because virtually no driver can avoid breaking some traffic law in any short journey, there is quite simply no need for officers to think in terms of observing criminal conduct other than the ever-present tiaffic violation before a citizen driving a car can be stopped. See supra notes 24-30 and accompanying text. The upshot is that anyone in a car can always be stopped, with just a little effort by the police. Some may contend that these violations are easy to make up, and that police could fabricate probable cause without much effort. While this may be so, the point lurking within Whren is that, as long as police are willing to follow drivers for a short time, there is no need to fabricate probable cause. The ever-present traffic offense is enough. Thus there need be no causal nexus of any kind between the stop and the eventual prosecution; the stop will rarely have anything to do with the crime charged, and the passenger has no control over whether the driver violates traffic rules.
136. See Whren v. United States, 116 S. Ct. 1769, 1776-77 (1996). In order to forcibly stop someone - that is, order the person to stop, as opposed to simply asking if they would mind doing so - police need probable cause to believe that a crime has been committed and that the suspect is involved. See Illinois v. Gates, 462 U.S. 213, 227 (1983). In Gates, the Court stated that probable cause is not "reduc[ible] to a neat set of legal rules," id. at 232, and is more correctly defined as relying on "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Gates also denned the concept as "a fair probability that contraband or evidence of a crime will be found," based on "the totality-of-the-circumstances." Id. at 238. The police may also stop someone based on reasonable suspicion. See Terry y. Ohio, 392 U.S. 1, 27 (1967) (requiring something more than an officer's "inchoate and unparticularized suspicion or 'hunch'"); Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less demanding standard than probable cause . . . ."). This generally means that a police officer must witness some activity that is indicative of crime. The Whren case changes this for anyone in a car. To be sure, probable cause is st ill required in the form of an observed traffic violation. But because virtually no driver can avoid breaking some traffic law in any short journey, there is quite simply no need for officers to think in terms of observing criminal conduct other than the ever-present tiaffic violation before a citizen driving a car can be stopped. See supra notes 24-30 and accompanying text. The upshot is that anyone in a car can always be stopped, with just a little effort by the police. Some may contend that these violations are easy to make up, and that police could fabricate probable cause without much effort. While this may be so, the point lurking within Whren is that, as long as police are willing to follow drivers for a short time, there is no need to fabricate probable cause. The ever-present traffic offense is enough. Thus there need be no causal nexus of any kind between the stop and the eventual prosecution; the stop will rarely have anything to do with the crime charged, and the passenger has no control over whether the driver violates traffic rules.
137. See Whren v. United States, 116 S. Ct. 1769, 1776-77 (1996). In order to forcibly stop someone - that is, order the person to stop, as opposed to simply asking if they would mind doing so - police need probable cause to believe that a crime has been committed and that the suspect is involved. See Illinois v. Gates, 462 U.S. 213, 227 (1983). In Gates, the Court stated that probable cause is not "reduc[ible] to a neat set of legal rules," id. at 232, and is more correctly defined as relying on "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Gates also denned the concept as "a fair probability that contraband or evidence of a crime will be found," based on "the totality-of-the-circumstances." Id. at 238. The police may also stop someone based on reasonable suspicion. See Terry y. Ohio, 392 U.S. 1, 27 (1967) (requiring something more than an officer's "inchoate and unparticularized suspicion or 'hunch'"); Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less demanding standard than probable cause . . . ."). This generally means that a police officer must witness some activity that is indicative of crime. The Whren case changes this for anyone in a car. To be sure, probable cause is st ill required in the form of an observed traffic violation. But because virtually no driver can avoid breaking some traffic law in any short journey, there is quite simply no need for officers to think in terms of observing criminal conduct other than the ever-present tiaffic violation before a citizen driving a car can be stopped. See supra notes 24-30 and accompanying text. The upshot is that anyone in a car can always be stopped, with just a little effort by the police. Some may contend that these violations are easy to make up, and that police could fabricate probable cause without much effort. While this may be so, the point lurking within Whren is that, as long as police are willing to follow drivers for a short time, there is no need to fabricate probable cause. The ever-present traffic offense is enough. Thus there need be no causal nexus of any kind between the stop and the eventual prosecution; the stop will rarely have anything to do with the crime charged, and the passenger has no control over whether the driver violates traffic rules.
138. See Whren v. United States, 116 S. Ct. 1769, 1776-77 (1996). In order to forcibly stop someone - that is, order the person to stop, as opposed to simply asking if they would mind doing so - police need probable cause to believe that a crime has been committed and that the suspect is involved. See Illinois v. Gates, 462 U.S. 213, 227 (1983). In Gates, the Court stated that probable cause is not "reduc[ible] to a neat set of legal rules," id. at 232, and is more correctly defined as relying on "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Gates also denned the concept as "a fair probability that contraband or evidence of a crime will be found," based on "the totality-of-the-circumstances." Id. at 238. The police may also stop someone based on reasonable suspicion. See Terry y. Ohio, 392 U.S. 1, 27 (1967) (requiring something more than an officer's "inchoate and unparticularized suspicion or 'hunch'"); Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less demanding standard than probable cause . . . ."). This generally means that a police officer must witness some activity that is indicative of crime. The Whren case changes this for anyone in a car. To be sure, probable cause is st ill required in the form of an observed traffic violation. But because virtually no driver can avoid breaking some traffic law in any short journey, there is quite simply no need for officers to think in terms of observing criminal conduct other than the ever-present tiaffic violation before a citizen driving a car can be stopped. See supra notes 24-30 and accompanying text. The upshot is that anyone in a car can always be stopped, with just a little effort by the police. Some may contend that these violations are easy to make up, and that police could fabricate probable cause without much effort. While this may be so, the point lurking within Whren is that, as long as police are willing to follow drivers for a short time, there is no need to fabricate probable cause. The ever-present traffic offense is enough. Thus there need be no causal nexus of any kind between the stop and the eventual prosecution; the stop will rarely have anything to do with the crime charged, and the passenger has no control over whether the driver violates traffic rules.
139. See Whren v. United States, 116 S. Ct. 1769, 1776-77 (1996). In order to forcibly stop someone - that is, order the person to stop, as opposed to simply asking if they would mind doing so - police need probable cause to believe that a crime has been committed and that the suspect is involved. See Illinois v. Gates, 462 U.S. 213, 227 (1983). In Gates, the Court stated that probable cause is not "reduc[ible] to a neat set of legal rules," id. at 232, and is more correctly defined as relying on "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Gates also denned the concept as "a fair probability that contraband or evidence of a crime will be found," based on "the totality-of-the-circumstances." Id. at 238. The police may also stop someone based on reasonable suspicion. See Terry y. Ohio, 392 U.S. 1, 27 (1967) (requiring something more than an officer's "inchoate and unparticularized suspicion or 'hunch'"); Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less demanding standard than probable cause . . . ."). This generally means that a police officer must witness some activity that is indicative of crime. The Whren case changes this for anyone in a car. To be sure, probable cause is st ill required in the form of an observed traffic violation. But because virtually no driver can avoid breaking some traffic law in any short journey, there is quite simply no need for officers to think in terms of observing criminal conduct other than the ever-present tiaffic violation before a citizen driving a car can be stopped. See supra notes 24-30 and accompanying text. The upshot is that anyone in a car can always be stopped, with just a little effort by the police. Some may contend that these violations are easy to make up, and that police could fabricate probable cause without much effort. While this may be so, the point lurking within Whren is that, as long as police are willing to follow drivers for a short time, there is no need to fabricate probable cause. The ever-present traffic offense is enough. Thus there need be no causal nexus of any kind between the stop and the eventual prosecution; the stop will rarely have anything to do with the crime charged, and the passenger has no control over whether the driver violates traffic rules.
140. See LAWRENCE P. TIFFANY ET AL., DETECTION OF CRIME 131-33 (1967).
141. Id. at 131.
142. The plain view exception is so widely used that it sometimes goes unmentioned and is often misunderstood. Briefly stated, an officer has probable cause for an immediate seizure of an item in "plain view" without a warrant if: (a) the officer sees the object from a lawful vantage point; (b) the officer has a right of physical access to it, and (c) the item's contraband nature is immediately apparent, without further searching. See generally Horton v. California, 496 U.S. 128, 136-37 (1990) (enumerating the three requirements); Coolidge v. New Hampshire, 403 U.S. 443, 464-67 (1971) (discussing the plain view doctrine).
143. The plain view exception is so widely used that it sometimes goes unmentioned and is often misunderstood. Briefly stated, an officer has probable cause for an immediate seizure of an item in "plain view" without a warrant if: (a) the officer sees the object from a lawful vantage point; (b) the officer has a right of physical access to it, and (c) the item's contraband nature is immediately apparent, without further searching. See generally Horton v. California, 496 U.S. 128, 136-37 (1990) (enumerating the three requirements); Coolidge v. New Hampshire, 403 U.S. 443, 464-67 (1971) (discussing the plain view doctrine).
144. Thus the officer can look into the car from a lawful vantage point, fulfilling the first criterion for the exception. This means more than simply being in a place from which the officer can see the evidence; in the words of Justice Stewart: "[I]n the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure." Coolidge, 403 U.S. at 465 (emphasis in original). Rather, the officer must not have violated the Fourth Amendment in coming to the spot from which the evidence is seen. See id. at 465-66.
145. Thus the officer can look into the car from a lawful vantage point, fulfilling the first criterion for the exception. This means more than simply being in a place from which the officer can see the evidence; in the words of Justice Stewart: "[I]n the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure." Coolidge, 403 U.S. at 465 (emphasis in original). Rather, the officer must not have violated the Fourth Amendment in coming to the spot from which the evidence is seen. See id. at 465-66.
146. See, e.g., Maryland v. Wilson, 117 S. Ct. 882, 885-85 (1997) (finding that an officer permissibly ordered a passenger out of the car after observing that the passenger seemed nervous).
147. See Texas v. Brown, 460 U.S. 730, 739-40 (1983) (plurality opinion) (finding that an officer's use of a flashlight to illuminate a car's interior does not constitute a search); United States v. Lee, 274 U.S. 559, 563 (1927) (stating that the use of artificial illumination is not a search for Fourth Amendment purposes).
148. See Texas v. Brown, 460 U.S. 730, 739-40 (1983) (plurality opinion) (finding that an officer's use of a flashlight to illuminate a car's interior does not constitute a search); United States v. Lee, 274 U.S. 559, 563 (1927) (stating that the use of artificial illumination is not a search for Fourth Amendment purposes).
149. See New York v. Belton, 453 U.S. 454, 460-61 (1981). In Belton, the Court announced a bright line rule: an officer may conduct a warrantless search of the passenger compartment of a vehicle including any closed containers found inside, contemporaneous with a lawful arrest of any of the vehicle's occupants. See id. Note that the Court did not limit the Belton rule to cases involving arrests of the car's drivers. Rather, it used the words "occupant of an automobile," id. at 460; thus, arrests of passengers would seem to trigger the rule. This rule applies in every case, not just when there appears to be a danger either to the officer or the integrity of the evidence; if the defendant is taken from a car and arrested, the officer may search the car, even though it is physically impossible for the defendant to get to the car to reach a weapon, destroy evidence, or escape. See id.
150. See New York v. Belton, 453 U.S. 454, 460-61 (1981). In Belton, the Court announced a bright line rule: an officer may conduct a warrantless search of the passenger compartment of a vehicle including any closed containers found inside, contemporaneous with a lawful arrest of any of the vehicle's occupants. See id. Note that the Court did not limit the Belton rule to cases involving arrests of the car's drivers. Rather, it used the words "occupant of an automobile," id. at 460; thus, arrests of passengers would seem to trigger the rule. This rule applies in every case, not just when there appears to be a danger either to the officer or the integrity of the evidence; if the defendant is taken from a car and arrested, the officer may search the car, even though it is physically impossible for the defendant to get to the car to reach a weapon, destroy evidence, or escape. See id.
151. See New York v. Belton, 453 U.S. 454, 460-61 (1981). In Belton, the Court announced a bright line rule: an officer may conduct a warrantless search of the passenger compartment of a vehicle including any closed containers found inside, contemporaneous with a lawful arrest of any of the vehicle's occupants. See id. Note that the Court did not limit the Belton rule to cases involving arrests of the car's drivers. Rather, it used the words "occupant of an automobile," id. at 460; thus, arrests of passengers would seem to trigger the rule. This rule applies in every case, not just when there appears to be a danger either to the officer or the integrity of the evidence; if the defendant is taken from a car and arrested, the officer may search the car, even though it is physically impossible for the defendant to get to the car to reach a weapon, destroy evidence, or escape. See id.
152. See New York v. Belton, 453 U.S. 454, 460-61 (1981). In Belton, the Court announced a bright line rule: an officer may conduct a warrantless search of the passenger compartment of a vehicle including any closed containers found inside, contemporaneous with a lawful arrest of any of the vehicle's occupants. See id. Note that the Court did not limit the Belton rule to cases involving arrests of the car's drivers. Rather, it used the words "occupant of an automobile," id. at 460; thus, arrests of passengers would seem to trigger the rule. This rule applies in every case, not just when there appears to be a danger either to the officer or the integrity of the evidence; if the defendant is taken from a car and arrested, the officer may search the car, even though it is physically impossible for the defendant to get to the car to reach a weapon, destroy evidence, or escape. See id.
153. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
154. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
155. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
156. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
157. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
158. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
159. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
160. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
161. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
162. See California v. Acevedo, 500 U.S. 565, 580 (1991). Prior to 1991, the law's treatment of closed containers found during searches of vehicles depended upon the facts of each case. If police happened to find a closed container in a vehicle when they had probable cause to search the entire vehicle, they did not need a warrant to open and search the container. See United States v. Ross, 456 U.S. 798, 821-23 (1982) (stating that a warrantless search, based on probable cause, of the vehicle and any containers that may contain the contraband sought is reasonable). If, on the other hand, they had probable cause to search a particular container and happened to find it in a vehicle, they did need a warrant. See, e.g., United States v. Chadwick, 433 U.S. 1, 11-13 (1976) (stating that the search of a locked footlocker placed in automobile and later seized by police required a warrant), abrogated by California v. Acevado, 500 U.S. 565 (1991); Arkansas v. Sanders, 442 U.S. 753, 765-66 (1979) (finding that Carroll's "automobile exception" did not extend to the warrantless search of luggage just because it was located in a lawfully stopped vehicle), abrogated by California v. Acevado, 500 U.S. 565 (1991). The Court clarified this situation in Acevedo, in which the police had probable cause to believe that contraband would be found in a particular kind of bag which happened to be deposited in a car trunk. See Acevado, 500 U.S. at 567, 580. The Court wiped away the dual set of rules which previously governed; instead, one rule would determine the outcome in both types of situations. See id. at 580. Speaking for the Court, Justice Blackmun said that "[t]he protections of the Fourth Amendment must not turn on . . . coincidences." Id. Instead, the Court stated that "police may now search without a warrant if their search is supported by probable cause." Thus, Acevedo held that the police may search any areas of an automobile and can open and search any closed containers found there, as long as they have probable cause to believe that evidence or contraband will be found. See id. at 580.
163. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
164. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
165. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
166. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
167. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
168. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing
169. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
170. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
171. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
172. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
173. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
174. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
175. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
176. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
177. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
178. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
179. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
180. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
181. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
182. Terry v. Ohio, 392 U.S. 1 (1968), and the cases that have followed it, for example, Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reiterating the Terry standard), and Adams v. Williams, 407 U.S. 143, 145-46 (1972) (same), permit a brief detention when there is reason to believe that crime is afoot and that a particular person is involved. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 145-46; Terry, 392 U.S. at 30. If outward appearances indicate that the suspect is armed and dangerous, or if the crime suspected is one that by its nature requires weapons, Terry allows a frisk - a pat-down of the outer clothing of the suspect - for the purpose of finding weapons. See Dickerson, 508 U.S. at 373; Adams, 407 U.S. at 146; Terry, 392 U.S. at 24, 30; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). Michigan v. Long, 463 U.S. 1032 (1983), extended the idea of a frisk to automobiles. See id. at 1049. Police in Long stopped to investigate a car that had swerved into a ditch; the defendant, who appeared intoxicated, met them at the rear of his car. See id. at 1035. When the defendant moved toward his car at the request of the officers to get his registration, one of the officers observed a hunting knife on the floorboard near the driver's seat. See id. at 1036. The defendant was outside the car and could not reach the weapon, but the officer did a cursory search of the car's interior anyway - a "frisk" of the car - and found a pouch of marijuana. See id. After the defendant was arrested for possession of this pouch of marijuana, a further search of the car's trunk revealed 75 pounds of marijuana. See id. According to the Court, this search comported with the Constitution. See id. at 1049-50. Although the weapon did not pose any current danger because the defendant was outside the vehicle, the Court found that it was reasonable to search areas in the car from which the defendant could get a weapon. See id. The circumstances of the case, the Court said, justified a reasonable belief that the defendant posed a danger if he returned to his car. See id. at 1050. It is difficult to understand the Court's conclusion. Among the circumstances the Court relies on are the lateness of the hour, the rural location, and the defendant's careless driving and apparent intoxication. See id. The Court also felt that the restricted nature of the search also made it reasonable. See id. But the fact remains that the defendant was outside his car and under the control of more than one police officer. He only moved toward the car in response to the officers' request for his license and registration. See id. at 1036. Thus, simply maintaining the status quo would have protected the officers fully. There was no need to search the car, and no need for a new rule of law.
183. See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (requiring that an individual taken into custody must be given warnings before questioning begins, informing him of his "right to remain silent, that anything he says can be used against him in a court of law, that he has the right to . . . an attorney, and that if he cannot afford an attorney one will be appointed for him").
184. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
185. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
186. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
187. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
188. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
189. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
190. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
191. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however,
192. See Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Once the car is stopped, can police question the driver? To be sure, officers can do more than request license and registration. They may question the driver and attempt to get substantive answers. If this sounds like it might be custodial interrogation that would trigger the requirements of the Miranda, think again. In Berkemer, the Court found that the typical roadside encounter does not bring Miranda into play. See id. at 437. According to the majority, the concerns that drive Miranda do not apply to the questioning of motorists by officers. See id. First, these encounters take place in public, and usually involve only one or two officers. Traffic stops do not include the secretive police controlled atmosphere of the station house, and the driver is therefore unlikely to feel completely within the power of the police. See id. at 438-39. Indeed, he can even refuse to answer questions. See id. at 439. Second, these encounters are "presumptively temporary and brief," and would not create the same feeling of fear and loss of control that one might feel upon a full custodial arrest or a trip to police headquarters. See id. at 437-38. Miranda does not, of course, say that those in custody cannot be interrogated. Rather, it says only that if custodial interrogation takes place, the resulting statements can be used in the prosecution's case in chief only if they were preceded by the Miranda warnings or some equivalent. See Miranda, 384 U.S. at 478-79. Berkemer says this requirement does not apply automatically to traffic stops. See 468 U.S. at 441. Officers may freely question motorists without giving them warnings, and any incriminating statements that result can come into evidence. In short, Miranda is just not a factor in a typical traffic stop. Justice Marshall did, however, attempt to leave some room for future cases with more egregious facts, when he said for the majority in Berkemer that a traffic stop could under some circumstances become a custodial interrogation situation requiring warnings. See id. at 440 ("If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda").
193. See Joe Hallinan, Highway Dragnets Seek Drug Couriers: Police Stop Many Cars for Searches, SEATTLE TIMES, Sept. 3, 1992, at B6.
194. See J. Andrew Curliss, A Nose for Dope: Trooper Has Knack for Drug Busts That Stand Up in Court, DALLAS MORNING NEWS, July 18, 1996, at 1A (describing how an officer experienced at making highway drug arrests looks for suspicious answers to his questions); Joseph Neff & Pat Stith, Highway Drug Unit Focuses on Blacks, RALEIGH NEWS & OBSERVER, July 28, 1996, at A1 (describing how officers question those stopped, looking for suspicious answers).
195. See J. Andrew Curliss, A Nose for Dope: Trooper Has Knack for Drug Busts That Stand Up in Court, DALLAS MORNING NEWS, July 18, 1996, at 1A (describing how an officer experienced at making highway drug arrests looks for suspicious answers to his questions); Joseph Neff & Pat Stith, Highway Drug Unit Focuses on Blacks, RALEIGH NEWS & OBSERVER, July 28, 1996, at A1 (describing how officers question those stopped, looking for suspicious answers).
196. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
197. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
198. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
199. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
200. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
201. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
202. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
203. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
204. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
205. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
206. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
207. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
208. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
209. Consent searches remain an important part of law enforcement's arsenal. In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court resolved the issue of whether a consent search required only a voluntary giving of consent or whether the state would have to show "'an intentional relinquishment or abandonment of a known right'" because consent involved the waiver of a constitutional right. See id. at 235 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Schneckloth, police obtained consent and performed a search without giving either Fourth Amendment "warnings" or advice. See id. at 219-20. The Court resolved the issue by relying on the voluntariness standard traditionally used in the police interrogation area, noting that "two competing concerns must be accommodated . . . - the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227. Requiring the state to show that the defendant knew he had a right to refuse consent and nevertheless waived it, would "create serious doubt whether consent searches could continue to be conducted," because the prosecution would find it quite difficult to prove the defendant's awareness of his right to refuse. Id. at 229-30. The Court was unwilling to promulgate such a rule and was candid about its reasons, stating: "In situations where the police have some evidence of illicit activity but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important or reliable evidence." Id. at 227 (emphasis added). The Court overlooked the possibility that in some cases, this "insufficient evidence" would not be indicative of criminality at all. The Court rejected the obvious answer - having officers advise the defendant of his right to refuse before asking for consent - as impractical, because consent searches, as a "standard" part of law enforcement's investigatory arsenal, are typically used in a less "structured" atmosphere than a trial, or even the custodial interrogation situation of Miranda. See id. at 231-32. The Court assumed, rather than explained, that this made the alternative of a warning impractical. The reason seems obvious: the Justices fear that citizens who would otherwise consent to a search might actually listen to a brief warning ("You don't have to let us, but we'd like to search your car") and refuse, thus depriving the police of the use of this "standard investigatory technique] [," id. at 231, that allows searches in the absence of any other legal justification. Robinette, the most recent case in this line, arose under different factual circumstances, but arrived at the same conclusion. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); supra notes 48-55 and accompanying text. Unlike the officer engaged in ongoing questioning and investigation in Schneckloth, the officer in Robinette had actually completed any investigation he was going to do and had resolved to let the defendant go with a verbal warning. See Robinette, 117 S. Ct. at 419. The officer's questioning of the defendant before the request for consent shows this. See id. ("One question before you get gone [sic] . . . .") (emphasis added) (internal quotations omitted). Nevertheless, the Court refused to see Robinette as any different than Schneckloth, and gave exactly the same kind of answer in Robinette in almost the same words: Schneckloth's "it would be thoroughly impractical" to tell defendants of their right to refuse, 412 U.S. at 231, became Robinette's "it [would] be unrealistic," 117 S. Ct. at 421. Both cases are almost nakedly result oriented; Robinette is different only because it lacks even the small amount of analysis present in Schneckloth.
210. See Hallinan, supra note 108, at B6.
211. See id.
212. Id. (quoting Indiana Trooper Terry Dellarosa).
213. See Harris, supra note 21, at 566-68 (describing the thorough search of a named plaintiff by Illinois State Police); Curliss, supra note 109, at 1A (attesting to thoroughness of trooper's searches); Neff & Stith, supra note 109, at A1 (describing searches that were so thorough that cars were permanently damaged).
214. See Harris, supra note 21, at 566-68 (describing the thorough search of a
215. See Harris, supra note 21, at 566-68 (describing the thorough search of a named plaintiff by Illinois State Police); Curliss, supra note 109, at 1A (attesting to thoroughness of trooper's searches); Neff & Stith, supra note 109, at A1 (describing searches that were so thorough that cars were permanently damaged).
216. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
217. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
218. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
219. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
220. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
221. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
222. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
223. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
224. See United States v. Place, 462 U.S. 696, 707 (1983). In Place, the Court assessed the constitutionality of allowing a dog trained to find drugs to sniff the luggage of an airline passenger. See id. at 697-98. Because the Court found the detention of the defendant's luggage that preceded the sniff unreasonable, id. at 705-06, 709, a decision on the constitutional validity of dog sniffs was unnecessary to the resolution of the case. Despite the fact that the constitutionality of the sniff had been neither briefed nor argued, id. at 723 (Blackmun, J., concurring), the Court decided the issue anyway. The Justices declared that having a trained dog sniff a defendant's luggage located in a public place (a significant limitation, making it not at all clear that Place should apply to dog sniffs of people, or to the public exteriors of homes) was not a search. See id. at 707. The Court offered two reasons. First, the dog was unintrusive. Using the dog did not even entail the opening of the luggage and the exposure of personal effects to public view, as a search by hand at an airport security checkpoint does. See id. Second, the dog only gave the authorities limited information: drugs are, or are not, present. See id. "[T]he canine sniff," the Court observed, "is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. Canine sniffs did not prove to be sui generis for very long. Just the next term, the Court put the use of drug field testing kits in the same category. See United States v. Jacobsen, 466 U.S. 109, 122-23 (1984).
225. Place is critically important to understanding how police conduct traffic stops and searches of cars. Because the Court has said that using a drug-sniffing dog is not a search for Fourth Amendment purposes, these dogs can be used without a warrant, without probable cause or reasonable suspicion - without any evidence at all - to provide individualized suspicion. This makes these dogs an indispensable part of the modern day police department's arsenal, because like consent searches they allow officers to search when the law would not otherwise allow it.
226. The word "immediate" does put the focus on a wrinkle worth mentioning: drivers can only be detained for a reasonable amount of time in order to bring a dog to the scene. See Harris, supra note 21, at 575-76. In fact, the constitutional violation in Place occurred because the detention of the luggage was longer than reasonable to obtain the dog. See Place, 462 U.S. at 707-10.
227. The word "immediate" does put the focus on a wrinkle worth mentioning: drivers can only be detained for a reasonable amount of time in order to bring a dog to the scene. See Harris, supra note 21, at 575-76. In fact, the constitutional violation in Place occurred because the detention of the luggage was longer than reasonable to obtain the dog. See Place, 462 U.S. at 707-10.
228. See, e.g., State v. Montoya, No. CR97-1072, slip op. at 2, 10 (Ohio Ct. C.P., Lucas County, June 17, 1997) (describing a videotape showing that an officer signaled for dogs to be brought to the car before any reason to be suspicious came to light).
229. See United States v. Ludwig, 10 F.3d 1523, 1527-28 (10th Cir. 1993) (holding that a dog alert constituted probable cause to search the defendant's trunk).
230. To be sure, the techniques described in this section do not exhaust law enforcement's repertoire. There are other ways that police can exercise their power over cars, their drivers and passengers, and their contents. For example, standardized departmental procedures often allow police to conduct inventory searches of automobiles and their contents after impoundment. See Colorado v. Bertine, 479 U.S. 367, 375-76 (1987); South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976). It is also constitutional to use vehicle checkpoints to briefly detain drivers who are not suspected of any crime. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976).
231. To be sure, the techniques described in this section do not exhaust law enforcement's repertoire. There are other ways that police can exercise their power over cars, their drivers and passengers, and their contents. For example, standardized departmental procedures often allow police to conduct inventory searches of automobiles and their contents after impoundment. See Colorado v. Bertine, 479 U.S. 367, 375-76 (1987); South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976). It is also constitutional to use vehicle checkpoints to briefly detain drivers who are not suspected of any crime. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976).
232. To be sure, the techniques described in this section do not exhaust law enforcement's repertoire. There are other ways that police can exercise their power over cars, their drivers and passengers, and their contents. For example, standardized departmental procedures often allow police to conduct inventory searches of automobiles and their contents after impoundment. See Colorado v. Bertine, 479 U.S. 367, 375-76 (1987); South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976). It is also constitutional to use vehicle checkpoints to briefly detain drivers who are not suspected of any crime. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976).
233. To be sure, the techniques described in this section do not exhaust law enforcement's repertoire. There are other ways that police can exercise their power over cars, their drivers and passengers, and their contents. For example, standardized departmental procedures often allow police to conduct inventory searches of automobiles and their contents after impoundment. See Colorado v. Bertine, 479 U.S. 367, 375-76 (1987); South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976). It is also constitutional to use vehicle checkpoints to briefly detain drivers who are not suspected of any crime. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976).
234. Professor LaFave put it this way: But given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone . . . there exists "a power that places the liberty of every man in the hands of the petty officer," precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. LAFAVE, supra note 9, § 1.4(e), at 123 (quoting John Adams, Petition of Lechmere, in 2 LEGAL PAPERS OF JOHN ADAMS 106, 141-42 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)). Another commentator put it this way: [I]f vice squad officers stop a car to search an individual for narcotics without the requisite probable cause or Terry v. Ohio reasonable suspicion, the fact that the search was unlawfully motivated is irrelevant to the question of the existence of a remediable fourth amendment violation as long as a court can point to other "objectively reasonable" grounds for stopping the car, such as a minor traffic violation. John M. Burkoff, The Court that Devoured the Fourth Amendment: The Triumph of an Inconsistent Exclusionary Doctrine, 58 OR. L. REV. 151, 189 (1979) (footnotes omitted) (discussing Scott v. United States, 436 U.S. 128, 137 (1978) (making the subjective intent of the police irrelevant in determining whether police action is constitutional)).
235. Professor LaFave put it this way: But given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone . . . there exists "a power that places the liberty of every man in the hands of the petty officer," precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. LAFAVE, supra note 9, § 1.4(e), at 123 (quoting John Adams, Petition of Lechmere, in 2 LEGAL PAPERS OF JOHN ADAMS 106, 141-42 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)). Another commentator put it this way: [I]f vice squad officers stop a car to search an individual for narcotics without the requisite probable cause or Terry v. Ohio reasonable suspicion, the fact that the search was unlawfully motivated is irrelevant to the question of the existence of a remediable fourth amendment violation as long as a court can point to other "objectively reasonable" grounds for stopping the car, such as a minor traffic violation. John M. Burkoff, The Court that Devoured the Fourth Amendment: The Triumph of an Inconsistent Exclusionary Doctrine, 58 OR. L. REV. 151, 189 (1979) (footnotes omitted) (discussing Scott v. United States, 436 U.S. 128, 137 (1978) (making the subjective intent of the police irrelevant in determining whether police action is constitutional)).
236. Professor LaFave put it this way: But given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone . . . there exists "a power that places the liberty of every man in the hands of the petty officer," precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. LAFAVE, supra note 9, § 1.4(e), at 123 (quoting John Adams, Petition of Lechmere, in 2 LEGAL PAPERS OF JOHN ADAMS 106, 141-42 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)). Another commentator put it this way: [I]f vice squad officers stop a car to search an individual for narcotics without the requisite probable cause or Terry v. Ohio reasonable suspicion, the fact that the search was unlawfully motivated is irrelevant to the question of the existence of a remediable fourth amendment violation as long as a court can point to other "objectively reasonable" grounds for stopping the car, such as a minor traffic violation. John M. Burkoff, The Court that Devoured the Fourth Amendment: The Triumph of an Inconsistent Exclusionary Doctrine, 58 OR. L. REV. 151, 189 (1979) (footnotes omitted) (discussing Scott v. United States, 436 U.S. 128, 137 (1978) (making the subjective intent of the police irrelevant in determining whether police action is constitutional)).
237. Professor LaFave put it this way: But given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone . . . there exists "a power that places the liberty of every man in the hands of the petty officer," precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. LAFAVE, supra note 9, § 1.4(e), at 123 (quoting John Adams, Petition of Lechmere, in 2 LEGAL PAPERS OF JOHN ADAMS 106, 141-42 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)). Another commentator put it this way: [I]f vice squad officers stop a car to search an individual for narcotics without the requisite probable cause or Terry v. Ohio reasonable suspicion, the fact that the search was unlawfully motivated is irrelevant to the question of the existence of a remediable fourth amendment violation as long as a court can point to other "objectively reasonable" grounds for stopping the car, such as a minor traffic violation. John M. Burkoff, The Court that Devoured the Fourth Amendment: The Triumph of an Inconsistent Exclusionary Doctrine, 58 OR. L. REV. 151, 189 (1979) (footnotes omitted) (discussing Scott v. United States, 436 U.S. 128, 137 (1978) (making the subjective intent of the police irrelevant in determining whether police action is constitutional)).
238. See Curliss, supra note 109, at 1A.
239. See id.
240. See id.
241. See id.
242. See id.
243. See id.
244. Id. (quoting Captain Fred Little, Department of Public Safety).
245. See, e.g., Terry v. Ohio, 392 U.S. 1, 22, 27 (1967) (requiring something more than "inchoate and unparticularized suspicion or 'hunch'").
246. See Curliss, supra note 109, at 1A.
247. See Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897). Holmes invites the reader to imagine how a "bad man," who would behave according to what "material consequences" the law would impose upon him, would act. See id. The hypothetical officer I have imagined here has this same mindset. The officer does the job of policing by anticipating the response to his or her actions from courts. The officer is practical, motivated by what will happen and not some higher notion of right or wrong. I hesitate to use Holmes's label for this character, however, because I do not mean to imply that the officer is in any sense evil or venal. For further insight into Holmes's speech, see generally The Path of the Law After One Hundred Years, 110 HARV. L. REV. 989, 989 (1997) (referring to the speech as "one of Holmes's most influential works").
248. See Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897). Holmes invites the reader to imagine how a "bad man," who would behave according to what "material consequences" the law would impose upon him, would act. See id. The hypothetical officer I have imagined here has this same mindset. The officer does the job of policing by anticipating the response to his or her actions from courts. The officer is practical, motivated by what will happen and not some higher notion of right or wrong. I hesitate to use Holmes's label for this character, however, because I do not mean to imply that the officer is in any sense evil or venal. For further insight into Holmes's speech, see generally The Path of the Law After One Hundred Years, 110 HARV. L. REV. 989, 989 (1997) (referring to the speech as "one of Holmes's most influential works").
249. See Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897). Holmes invites the reader to imagine how a "bad man," who would behave according to what "material consequences" the law would impose upon him, would act. See id. The hypothetical officer I have imagined here has this same mindset. The officer does the job of policing by anticipating the response to his or her actions from courts. The officer is practical, motivated by what will happen and not some higher notion of right or wrong. I hesitate to use Holmes's label for this character, however, because I do not mean to imply that the officer is in any sense evil or venal. For further insight into Holmes's speech, see generally The Path of the Law After One Hundred Years, 110 HARV. L. REV. 989, 989 (1997) (referring to the speech as "one of Holmes's most influential works").
250. I owe the idea of casting Holmes's "bad man" (or the view of the "bad man") in a law enforcement role to Professor Alschuler, who illustrated a point concerning the Supreme Court's Miranda jurisprudence by imagining "the bad man of the law" as the author of a police training manual. See Albert W. Alschuler, Failed Pragmatism: Reflections on the Burger Court, 100 HARV. L. REV. 1436, 1442-43 (1987) (stating that in failing to overrule Miranda, the Burger Court "create[d] a situation in which a police training manual authored by Justice Holmes' 'bad man of the law' might" advise officers on ways to get around the law).
251. See Steven Stark, America's Long-Term Love Affair with the Automobile (National Public Radio broadcast, Aug. 18, 1996) ("It is virtually impossible to overstate the importance of the car in American life.").
252. See id.
253. See ALAN E. PISARSKI, COMMUTING IN AMERICA II 103 (1996).
254. See id. at 3.
255. See id. at 39-42, 50, 60-61.
256. See U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 635, No. 1030 (1995).
257. See id.
258. See U.S. DEP'T. OF TRANSP., HIGHWAY STATISTICS 31 (1990).
259. See id. at 30-35.
260. See U.S. DEP'T OF COMMERCE, supra note 138, at 632, No. 1023.
261. See id. at 634, No. 1026.
262. See id. at 632, No. 1023.
263. See id. at 634, No. 1026.
264. See id. at 8, No. 2.
265. See PISARSKI, supra note 135, at xii.
266. See id. at 34.
267. See id. at xiii.
268. See id.
269. See, e.g., Wilson v. Maryland, 117 S. Ct. 882, 884-85 (1997) (explaining that the reasonableness of the government's invasion of a citizen's personal security is the Fourth Amendment's central concern) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)); Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) ("[T]he 'touchstone of the Fourth Amendment is reasonableness.'") (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).
270. See, e.g., Wilson v. Maryland, 117 S. Ct. 882, 884-85 (1997) (explaining that the reasonableness of the government's invasion of a citizen's personal security is the Fourth Amendment's central concern) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)); Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) ("[T]he 'touchstone of the Fourth Amendment is reasonableness.'") (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).
271. See, e.g., Wilson v. Maryland, 117 S. Ct. 882, 884-85 (1997) (explaining that the reasonableness of the government's invasion of a citizen's personal security is the Fourth Amendment's central concern) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)); Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) ("[T]he 'touchstone of the Fourth Amendment is reasonableness.'") (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).
272. See, e.g., Wilson v. Maryland, 117 S. Ct. 882, 884-85 (1997) (explaining that the reasonableness of the government's invasion of a citizen's personal security is the Fourth Amendment's central concern) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)); Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) ("[T]he 'touchstone of the Fourth Amendment is reasonableness.'") (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).
273. U.S. CONST, amend. IV.
274. See, e.g., United States v. Chadwick, 433 U.S. 1, 7-8 (1977), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). The Court in Chadwick stated: [T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Id.; see also Miller v. United States, 357 U.S. 301, 307 (1958). The Court in Miller stated: "The poorest man may in Ms cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" Id. (quoting remarks attributed to William Pitt).
275. See, e.g., United States v. Chadwick, 433 U.S. 1, 7-8 (1977), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). The Court in Chadwick stated: [T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Id.; see also Miller v. United States, 357 U.S. 301, 307 (1958). The Court in Miller stated: "The poorest man may in Ms cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" Id. (quoting remarks attributed to William Pitt).
276. See, e.g., United States v. Chadwick, 433 U.S. 1, 7-8 (1977), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). The Court in Chadwick stated: [T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Id.; see also Miller v. United States, 357 U.S. 301, 307 (1958). The Court in Miller stated: "The poorest man may in Ms cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" Id. (quoting remarks attributed to William Pitt).
277. See, e.g., United States v. Chadwick, 433 U.S. 1, 7-8 (1977), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). The Court in Chadwick stated: [T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Id.; see also Miller v. United States, 357 U.S. 301, 307 (1958). The Court in Miller stated: "The poorest man may in Ms cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" Id. (quoting remarks attributed to William Pitt).
278. See, e.g., United States v. Chadwick, 433 U.S. 1, 7-8 (1977), abrogated on other grounds by California v. Acevado, 500 U.S. 565 (1991). The Court in Chadwick stated: [T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Id.; see also Miller v. United States, 357 U.S. 301, 307 (1958). The Court in Miller stated: "The poorest man may in Ms cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" Id. (quoting remarks attributed to William Pitt).
279. See KENNETH C. DAVIS, DISCRETIONARY JUSTICE 51 (1969).
280. See infra note 164.
281. See infra notes 159-164 and accompanying text.
282. See infra notes 159-162 and accompanying text.
283. See supra notes 46-51 and accompanying text.
284. Press Release, Attorney General Betty Montgomery Hails U.S. Supreme Court Decision As a Victory for Ohio Law Enforcement, Nov. 18, 1996.
285. Id. (quoting Ohio Attorney General Betty D. Montgomery).
286. Id. (quoting Ohio Attorney General Betty D. Montgomery).
287. Memorandum from St. Lt. W.D. Healy, TDIT Unit Coordinator, to Major R.N. Rucker A-3 (Dec. 11, 1995) (on file with author) [hereinafter Healy Memorandum].
288. Id. at A-4.
289. See, e.g., A Victory for Law Enforcement, PHOENIX GAZETTE, Nov. 22, 1996, at B18 (hailing the Robinette decision because "nationwide routine traffic stops do garner massive quantities of . . . drugs"); Lyle Denniston, Police Given Expanded Traffic Stop Authority, BALT. SUN, Feb. 20, 1997, at 1A (reporting Maryland Attorney General Joseph Curran's statement that the Wilson decision "'should make every officer in the nation feel a little safer tonight'"); Know Your Rights, LAS VEGAS REV.-J., Nov. 19, 1996, at 6B (stating that the decision in Robinette is "not unreasonable," and that citizens should know and be prepared to their assert right to refuse consent); David G. Savage, Officers Can Order Passengers Out of Car, Justices Decide, L.A. TIMES, Feb. 20, 1997, at A21 (stating that Los Angeles Police Commander Tim McBride praised the Wilson decision because "[i]t improves officer safety and improves our ability to investigate multiple suspects").
290. See, e.g., A Victory for Law Enforcement, PHOENIX GAZETTE, Nov. 22, 1996, at B18 (hailing the Robinette decision because "nationwide routine traffic stops do garner massive quantities of . . . drugs"); Lyle Denniston, Police Given Expanded Traffic Stop Authority, BALT. SUN, Feb. 20, 1997, at 1A (reporting Maryland Attorney General Joseph Curran's statement that the Wilson decision "'should make every officer in the nation feel a little safer tonight'"); Know Your Rights, LAS VEGAS REV.-J., Nov. 19, 1996, at 6B (stating that the decision in Robinette is "not unreasonable," and that citizens should know and be prepared to their assert right to refuse consent); David G. Savage, Officers Can Order Passengers Out of Car, Justices Decide, L.A. TIMES, Feb. 20, 1997, at A21 (stating that Los Angeles Police Commander Tim McBride praised the Wilson decision because "[i]t improves officer safety and improves our ability to investigate multiple suspects").
291. See, e.g., A Victory for Law Enforcement, PHOENIX GAZETTE, Nov. 22, 1996, at B18 (hailing the Robinette decision because "nationwide routine traffic stops do garner massive quantities of . . . drugs"); Lyle Denniston, Police Given Expanded Traffic Stop Authority, BALT. SUN, Feb. 20, 1997, at 1A (reporting Maryland Attorney General Joseph Curran's statement that the Wilson decision "'should make every officer in the nation feel a little safer tonight'"); Know Your Rights, LAS VEGAS REV.-J., Nov. 19, 1996, at 6B (stating that the decision in Robinette is "not unreasonable," and that citizens should know and be prepared to their assert right to refuse consent); David G. Savage, Officers Can Order Passengers Out of Car, Justices Decide, L.A. TIMES, Feb. 20, 1997, at A21 (stating that Los Angeles Police Commander Tim McBride praised the Wilson decision because "[i]t improves officer safety and improves our ability to investigate multiple suspects").
292. See, e.g., A Victory for Law Enforcement, PHOENIX GAZETTE, Nov. 22, 1996, at B18 (hailing the Robinette decision because "nationwide routine traffic stops do garner massive quantities of . . . drugs"); Lyle Denniston, Police Given Expanded Traffic Stop Authority, BALT. SUN, Feb. 20, 1997, at 1A (reporting Maryland Attorney General Joseph Curran's statement that the Wilson decision "'should make every officer in the nation feel a little safer tonight'"); Know Your Rights, LAS VEGAS REV.-J., Nov. 19, 1996, at 6B (stating that the decision in Robinette is "not unreasonable," and that citizens should know and be prepared to their assert right to refuse consent); David G. Savage, Officers Can Order Passengers Out of Car, Justices Decide, L.A. TIMES, Feb. 20, 1997, at A21 (stating that Los Angeles Police Commander Tim McBride praised the Wilson decision because "[i]t improves officer safety and improves our ability to investigate multiple suspects").
293. See Healy Memorandum, supra note 162, at A-4, A-5 to A-7.
294. Note, however, that it is also easy to overstate the significance of the point. Of the 400 plus cases described in the Memorandum I received, eleven were seizures of marijuana of ten pounds or more, and just two were large seizures of cocaine. See id. at A-5 to A-7. The rest were, presumably, smaller. When I requested information on the size of these other seizures, I was told that the information was not tabulated in a form that would make the answer accessible. Telephone Interview with Todd Boyer, Office of the Attorney General (Dec. 13, 1995). It was also unclear whether all 400 seizures involved consent searches after highway stops or some combination of other techniques. See Healy Memorandum, supra note 162, at A-4 to A-7.
295. Note, however, that it is also easy to overstate the significance of the point. Of the 400 plus cases described in the Memorandum I received, eleven were seizures of marijuana of ten pounds or more, and just two were large seizures of cocaine. See id. at A-5 to A-7. The rest were, presumably, smaller. When I requested information on the size of these other seizures, I was told that the information was not tabulated in a form that would make the answer accessible. Telephone Interview with Todd Boyer, Office of the Attorney General (Dec. 13, 1995). It was also unclear whether all 400 seizures involved consent searches after highway stops or some combination of other techniques. See Healy Memorandum, supra note 162, at A-4 to A-7.
296. See supra Part IV.A.
297. Although the usual Fourth Amendment litigants are persons found guilty who have disputed the admissibility of probative evidence used against them on constitutional grounds, there have been at least two cases that have focused on the rights of those innocent of any wrongdoing. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (holding that the customs service may conduct drug tests on employees who apply for positions where they will carry firearms or will be directly involved in drug interdiction); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 609, 611, 634 (1989) (upholding Federal Railway Administration regulations requiring employees involved in major train accidents or suspected of using drugs to submit breath or urine tests). As Professor Schulhofer noted, in these cases "the Court had one of its rare opportunities to hear face-to-face, as Fourth Amendment claimants, those law-abiding citizens for whose ultimate benefit the constitutional restraints on public power were primarily intended." Stephen J. Schulhofer, On the Fourth Amendment Rights of the Law-Abiding Public, 1989 SUP. CT. REV. 87, 88.
298. Although the usual Fourth Amendment litigants are persons found guilty who have disputed the admissibility of probative evidence used against them on constitutional grounds, there have been at least two cases that have focused on the rights of those innocent of any wrongdoing. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (holding that the customs service may conduct drug tests on employees who apply for positions where they will carry firearms or will be directly involved in drug interdiction); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 609, 611, 634 (1989) (upholding Federal Railway Administration regulations requiring employees involved in major train accidents or suspected of using drugs to submit breath or urine tests). As Professor Schulhofer noted, in these cases "the Court had one of its rare opportunities to hear face-to-face, as Fourth Amendment claimants, those law-abiding citizens for whose ultimate benefit the constitutional restraints on public power were primarily intended." Stephen J. Schulhofer, On the Fourth Amendment Rights of the Law-Abiding Public, 1989 SUP. CT. REV. 87, 88.
299. Although the usual Fourth Amendment litigants are persons found guilty who have disputed the admissibility of probative evidence used against them on constitutional grounds, there have been at least two cases that have focused on the rights of those innocent of any wrongdoing. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (holding that the customs service may conduct drug tests on employees who apply for positions where they will carry firearms or will be directly involved in drug interdiction); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 609, 611, 634 (1989) (upholding Federal Railway Administration regulations requiring employees involved in major train accidents or suspected of using drugs to submit breath or urine tests). As Professor Schulhofer noted, in these cases "the Court had one of its rare opportunities to hear face-to-face, as Fourth Amendment claimants, those law-abiding citizens for whose ultimate benefit the constitutional restraints on public power were primarily intended." Stephen J. Schulhofer, On the Fourth Amendment Rights of the Law-Abiding Public, 1989 SUP. CT. REV. 87, 88.
300. See Delaware v. Prouse, 440 U.S. 648, 657 (1979) (stating that "stopping or detaining a vehicle on an ordinary city street" involves a "physical and psychological intrusion" due to "a possibly unsettling show of authority" and "may create substantial anxiety"); cf. Terry v. Ohio, 392 U.S. 1, 14, 16-17, 24-25 (1968) (noting that it is "simply fantastic" to claim that a stop and frisk is a "'petty indignity'"; rather "[i]t is a serious intrusion . . . which may inflict great indignity and arouse strong resentment" and may be "an annoying, frightening and perhaps humiliating experience") (footnote omitted)); Louis M. Seidman, The Problems with Privacy's Problem, 93 MICH. L. REV. 1079, 1089 (1995) ("[S]earches on the street . . . amount to a species of violence. . . . Even if the search is less intrusive [than a typical stop and frisk] - for example, opening a paper bag or requiring a defendant to get out of his car - it may well be a terrifying experience.").
301. See Delaware v. Prouse, 440 U.S. 648, 657 (1979) (stating that "stopping or detaining a vehicle on an ordinary city street" involves a "physical and psychological intrusion" due to "a possibly unsettling show of authority" and "may create substantial anxiety"); cf. Terry v. Ohio, 392 U.S. 1, 14, 16-17, 24-25 (1968) (noting that it is "simply fantastic" to claim that a stop and frisk is a "'petty indignity'"; rather "[i]t is a serious intrusion . . . which may inflict great indignity and arouse strong resentment" and may be "an annoying, frightening and perhaps humiliating experience") (footnote omitted)); Louis M. Seidman, The Problems with Privacy's Problem, 93 MICH. L. REV. 1079, 1089 (1995) ("[S]earches on the street . . . amount to a species of violence. . . . Even if the search is less intrusive [than a typical stop and frisk] - for example, opening a paper bag or requiring a defendant to get out of his car - it may well be a terrifying experience.").
302. See Delaware v. Prouse, 440 U.S. 648, 657 (1979) (stating that "stopping or detaining a vehicle on an ordinary city street" involves a "physical and psychological intrusion" due to "a possibly unsettling show of authority" and "may create substantial anxiety"); cf. Terry v. Ohio, 392 U.S. 1, 14, 16-17, 24-25 (1968) (noting that it is "simply fantastic" to claim that a stop and frisk is a "'petty indignity'"; rather "[i]t is a serious intrusion . . . which may inflict great indignity and arouse strong resentment" and may be "an annoying, frightening and perhaps humiliating experience") (footnote omitted)); Louis M. Seidman, The Problems with Privacy's Problem, 93 MICH. L. REV. 1079, 1089 (1995) ("[S]earches on the street . . . amount to a species of violence. . . . Even if the search is less intrusive [than a typical stop and frisk] - for example, opening a paper bag or requiring a defendant to get out of his car - it may well be a terrifying experience.").
303. See United States v. Leon, 468 U.S. 897, 913-14, 922 (1984) (stating that in order to justify application of the exclusionary rule, the rule's benefit in deterrence must outweigh its costs in lost prosecutions).
304. See Memorandum, supra note 162 at A-4.
305. Telephone Interview with Todd Boyer, supra note 166.
306. See Curliss, supra note 109, at 1A.
307. See id.
308. Id.
309. See Neff & Stith, supra note 109, at A1. The number of cars stopped may be even higher because probably not every car stopped is searched. This would make the ratio even smaller than one in seventeen, and would make for an even larger burden on the innocent.
310. See id.
311. Id.
312. See Whren v. United States, 116 S. Ct. 1768, 1771 (1996).
313. See Maryland v. Wilson, 117 U.S. 882, 890 (1997) (Kennedy, J., dissenting).
314. Id. at 890 (Kennedy, J., dissenting).
315. th Cong. (1997), currently pending in the House of Representatives, seeks to remedy this situation by requiring systematic record keeping in traffic stops in order to enable a full and accurate assessment of the practices that take place. See id. § 2.
316. th Cong. (1997), currently pending in the House of Representatives, seeks to remedy this situation by requiring systematic record keeping in traffic stops in order to enable a full and accurate assessment of the practices that take place. See id. § 2.
317. th Cong. (1997), currently pending in the House of Representatives, seeks to remedy this situation by requiring systematic record keeping in traffic stops in order to enable a full and accurate assessment of the practices that take place. See id. § 2.
318. Settlement Agreement, Wilkins v. Maryland State Police, Civ. No. MJG-93-468 (D. Md. Jan. 5, 1995); Davis, supra note 35, at 438-42; Harris, supra note 21, at 563-66.
319. Settlement Agreement, Wilkins v. Maryland State Police, Civ. No. MJG-93-468 (D. Md. Jan. 5, 1995); Davis, supra note 35, at 438-42; Harris, supra note 21, at 563-66.
320. Settlement Agreement, Wilkins v. Maryland State Police, Civ. No. MJG-93-468 (D. Md. Jan. 5, 1995); Davis, supra note 35, at 438-42; Harris, supra note 21, at 563-66.
321. See Settlement Agreement ¶ 6, Wilkens (Civ. No. MJG-93-468).
322. See id. ¶ 9. Note that such records might tend to underestimate the total number of racially based stops because they only include stops that are followed by searches, and only searches of two kinds: those with consent and those using drug-sniffing dogs. See id.
323. See Summaries of Records of Maryland State Police Searches, Jan. 1995-June 1996 (on file with author). These data were produced in raw form to the court and plaintiffs' counsel; the summaries were produced by plaintiffs' counsel.
324. See Memorandum in Support of Plaintiff's Motion for Enforcement of Settlement Agreement and for Further Relief at 7-8, Wilkins v. Maryland State Police, Civ. No. CCB-93-468 (D. Md. Nov. 4, 1996). The court denied the defendant's motion for summary judgment, and found that the plaintiffs had made a reasonable showing of a pattern and practice of discrimination. As of March 1998, further relief, in the form of an extension of the obligation to collect data, installation of video cameras on patrol cars, clarification of departmental policy on traffic stops, and attorney's fees, was being put into the form of a new settlement agreement. Telephone interview with Deborah A. Jeon, Counsel for Plaintiffs (March 17, 1998).
325. Jeff Brazil & Steve Berry, Color of Driver is Key to Stops in 1-95 Videos, ORLANDO SENTINEL, Aug. 23, 1992, at A1.
326. See id.
327. See id.
328. See Henry P. Curtis, Statistics Show Pattern of Discrimination, ORLANDO SENTINEL, Aug. 23,1992, at A11. The five percent figure was based on a five-day sampling. See.id.
329. See id.
330. See Brazil & Berry, supra note 188, at A1.
331. See id.
332. See Illegal Searches Used in Illinois, Suit Alleges, N.Y. TIMES, Sept. 4, 1994, at A24 [hereinafter "Illegal Searches"].
333. Fourth Amended Complaint ¶¶ 23, 24, 29, 30, Chavez v. Illinois State Police, No. 94 C 5307 (N.D. Ill. filed Aug. 30, 1994). The investigator was also asked to consent to a search, but refused. See id. ¶ 29.
334. See id. ¶ 31.
335. See id. ¶¶ 32, 33.
336. See id. ¶¶ 31, 32.
337. See id. ¶ 33.
338. See Illegal Searches, supra note 195, at A24.
339. See Neff & Stith, supra note 109, at A1 (noting that the drug interdiction team searched 3501 vehicles in 1995 alone).
340. See id. (reporting that officers are taught "'to legitimately stop vehicles for traffic violations . . .[ and then] look for indicators [of drug trafficking]'" (quoting Sergeant Timmy Lee Cardwell)).
341. See id. (recounting instances in which searches damaged vehicles).
342. See id.
343. See id.
344. See, e.g., Amended Complaint ¶¶ 3, 5, 15, 16, Indianapolis Chapter, NAACP, v. City of Carmel, No. IP 97-104 C M/S (S.D. Ind. filed Mar. 17, 1997) (alleging, in a class action suit against a suburban town, biased use of traffic stops against minorities); State v. Soto, No. 88-07-00492i, slip op. at 1 (N.J. Sup. Ct. Mar. 4, 1996) (granting a motion to suppress evidence based on violations of the Equal Protection and Due Process Clauses involving racially biased traffic enforcement); Patrick O'Driscoll, "Drug Profile" Lawsuit Settled, DENV. POST, Nov. 10, 1995, at 1A (detailing settlement of lawsuit growing out of racially biased drug interdiction in Eagle County, Colorado); see also United States v. Laymon, 730 F. Supp. 332, 339-40 (D. Colo. 1990) (holding that an alleged traffic violation was a pretext for an invalid stop); Barbara W. Stack, The Color of Justice, PITTSBURGH POST-GAZETTE, May 5, 1996, at A1 (describing the common experience of police harassment that led some African Americans to file suit).
345. See, e.g., Amended Complaint ¶¶ 3, 5, 15, 16, Indianapolis Chapter, NAACP, v. City of Carmel, No. IP 97-104 C M/S (S.D. Ind. filed Mar. 17, 1997) (alleging, in a class action suit against a suburban town, biased use of traffic stops against minorities); State v. Soto, No. 88-07-00492i, slip op. at 1 (N.J. Sup. Ct. Mar. 4, 1996) (granting a motion to suppress evidence based on violations of the Equal Protection and Due Process Clauses involving racially biased traffic enforcement); Patrick O'Driscoll, "Drug Profile" Lawsuit Settled, DENV. POST, Nov. 10, 1995, at 1A (detailing settlement of lawsuit growing out of racially biased drug interdiction in Eagle County, Colorado); see also United States v. Laymon, 730 F. Supp. 332, 339-40 (D. Colo. 1990) (holding that an alleged traffic violation was a pretext for an invalid stop); Barbara W. Stack, The Color of Justice, PITTSBURGH POST-GAZETTE, May 5, 1996, at A1 (describing the common experience of police harassment that led some African Americans to file suit).
346. See, e.g., Amended Complaint ¶¶ 3, 5, 15, 16, Indianapolis Chapter, NAACP, v. City of Carmel, No. IP 97-104 C M/S (S.D. Ind. filed Mar. 17, 1997) (alleging, in a class action suit against a suburban town, biased use of traffic stops against minorities); State v. Soto, No. 88-07-00492i, slip op. at 1 (N.J. Sup. Ct. Mar. 4, 1996) (granting a motion to suppress evidence based on violations of the Equal Protection and Due Process Clauses involving racially biased traffic enforcement); Patrick O'Driscoll, "Drug Profile" Lawsuit Settled, DENV. POST, Nov. 10, 1995, at 1A (detailing settlement of lawsuit growing out of racially biased drug interdiction in Eagle County, Colorado); see also United States v. Laymon, 730 F. Supp. 332, 339-40 (D. Colo. 1990) (holding that an alleged traffic violation was a pretext for an invalid stop); Barbara W. Stack, The Color of Justice, PITTSBURGH POST-GAZETTE, May 5, 1996, at A1 (describing the common experience of police harassment that led some African Americans to file suit).
347. See, e.g., Amended Complaint ¶¶ 3, 5, 15, 16, Indianapolis Chapter, NAACP, v. City of Carmel, No. IP 97-104 C M/S (S.D. Ind. filed Mar. 17, 1997) (alleging, in a class action suit against a suburban town, biased use of traffic stops against minorities); State v. Soto, No. 88-07-00492i, slip op. at 1 (N.J. Sup. Ct. Mar. 4, 1996) (granting a motion to suppress evidence based on violations of the Equal Protection and Due Process Clauses involving racially biased traffic enforcement); Patrick O'Driscoll, "Drug Profile" Lawsuit Settled, DENV. POST, Nov. 10, 1995, at 1A (detailing settlement of lawsuit growing out of racially biased drug interdiction in Eagle County, Colorado); see also United States v. Laymon, 730 F. Supp. 332, 339-40 (D. Colo. 1990) (holding that an alleged traffic violation was a pretext for an invalid stop); Barbara W. Stack, The Color of Justice, PITTSBURGH POST-GAZETTE, May 5, 1996, at A1 (describing the common experience of police harassment that led some African Americans to file suit).
348. See, e.g., Amended Complaint ¶¶ 3, 5, 15, 16, Indianapolis Chapter, NAACP, v. City of Carmel, No. IP 97-104 C M/S (S.D. Ind. filed Mar. 17, 1997) (alleging, in a class action suit against a suburban town, biased use of traffic stops against minorities); State v. Soto, No. 88-07-00492i, slip op. at 1 (N.J. Sup. Ct. Mar. 4, 1996) (granting a motion to suppress evidence based on violations of the Equal Protection and Due Process Clauses involving racially biased traffic enforcement); Patrick O'Driscoll, "Drug Profile" Lawsuit Settled, DENV. POST, Nov. 10, 1995, at 1A (detailing settlement of lawsuit growing out of racially biased drug interdiction in Eagle County, Colorado); see also United States v. Laymon, 730 F. Supp. 332, 339-40 (D. Colo. 1990) (holding that an alleged traffic violation was a pretext for an invalid stop); Barbara W. Stack, The Color of Justice, PITTSBURGH POST-GAZETTE, May 5, 1996, at A1 (describing the common experience of police harassment that led some African Americans to file suit).
349. See, e.g., Mark Pazniokas, Discrimination by Police Often Hard to Prove, HARTFORD COURANT, May 2, 1994, at A1 (finding that "victims [of racially biased police practices] are reluctant to sue" and "tend to shrug off the [racially biased] stops as an annoying fact of life").
350. See KENNEDY, supra note 21, at 154-63 (arguing that even though African Americans are statistically more likely to commit street crime, treating race as a proxy for criminality is nevertheless wrong); Harris, supra note 21, at 571-73 (finding that although law enforcement calls racially disproportionate stops good police work or "'an unfortunate byproduct of sound police policies,'" it is nothing more than the improper use of race "as a proxy for the criminality or 'general criminal propensity' of an entire racial group" (footnotes omitted)).
351. See KENNEDY, supra note 21, at 154-63 (arguing that even though African Americans are statistically more likely to commit street crime, treating race as a proxy for criminality is nevertheless wrong); Harris, supra note 21, at 571-73 (finding that although law enforcement calls racially disproportionate stops good police work or "'an unfortunate byproduct of sound police policies,'" it is nothing more than the improper use of race "as a proxy for the criminality or 'general criminal propensity' of an entire racial group" (footnotes omitted)).
352. See Whren v. United States, 116 S. Ct. 1769, 1774 (1996).
353. To prove a violation of the Equal Protection Clause, "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240 (1976); see also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65, 271 (1977) (holding that proof of a racially discriminatory aim is required to show a violation of the Equal Protection Clause and finding that a discriminatory "ultimate effect" did not make out a constitutional claim).
354. To prove a violation of the Equal Protection Clause, "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240 (1976); see also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65, 271 (1977) (holding that proof of a racially discriminatory aim is required to show a violation of the Equal Protection Clause and finding that a discriminatory "ultimate effect" did not make out a constitutional claim).
355. See Whren, 116 S. Ct. at 1775.
356. See id. at 1774.
357. See Neff & Stith, supra note 109, at A1; see also supra notes 107-114 and accompanying text.
358. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
359. See, e.g., ARIZ. REV. STAT. ANN. §§ 28-622, 28-622.01 (West 1989); CAL. VEH. CODE §§ 2800, 2800.1 (West Supp. 1997); DEL. CODE ANN. tit. 21, § 4103 (1995); FLA. STAT. ANN. § 316.1935 (West Supp. 1998); 625 ILL. COMP. STAT. 5/11-204 (West 1997); NEV. REV. STAT. ANN. §§ 484.348, 484.3595 (Michie Supp. 1995); N.Y. VEH. & TRAF. LAW § 1102 (McKinney Supp. 1997); PA. STAT. ANN. tit. 75, § 3733(a) (West Supp. 1996); WASH. REV. CODE ANN. § 46.61.020 (West Supp. 1997).
360. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 436 (1984) ("Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.").
361. See, e.g., KY. REV. STAT. ANN. §§ 189.290, 189.393, 189.520, 189.580, 189A.010, 431.005(e) (Banks-Baldwin 1995) (giving an officer the discretion to arrest a driver if the officer observes a failure to drive "in a careful manner," if the driver fails to comply with the officer's signal to pull over, if the officer observes the driver operating the vehicle while intoxicated, or if a driver involved in an accident with injuries fails to stop and render aid or locate the owner if property is damaged); MASS. ANN. LAWS, ch. 90, § 21 (Law Co-op. 1994) (giving an officer the discretion to arrest without a warrant persons driving with suspended or revoked licenses, persons driving while intoxicated, and drivers who leave the scene of an accident that caused injuries to any person); OHIO REV. CODE ANN. §§ 2935.03(C), 4506.15(A)-(C), 4511.19 (Anderson 1996) (allowing police to arrest individuals for driving while under the influence of alcohol or other intoxicants).
362. See JONATHAN RUBINSTEIN, CITY POLICE (1973), reprinted in POLICE BEHAVIOR: A SOCIOLOGICAL PERSPECTIVE 68, 68-71 (Richard J. Lundman ed., 1980); Wayland Pilcher, The Law and Practice of Field Interrogation, 58 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 465, 490 (1967) (finding that in a study conducted, "an overwhelming majority of the individuals stopped cooperated willingly with the police officer, if not out if a sense of civic duty at least with the attitude that this temporary delay be ended as quickly as possible").
363. See JONATHAN RUBINSTEIN, CITY POLICE (1973), reprinted in POLICE BEHAVIOR: A SOCIOLOGICAL PERSPECTIVE 68, 68-71 (Richard J. Lundman ed., 1980); Wayland Pilcher, The Law and Practice of Field Interrogation, 58 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 465, 490 (1967) (finding that in a study conducted, "an overwhelming majority of the individuals stopped cooperated willingly with the police officer, if not out if a sense of civic duty at least with the attitude that this temporary delay be ended as quickly as possible").
364. See JONATHAN RUBINSTEIN, CITY POLICE (1973), reprinted in POLICE BEHAVIOR: A SOCIOLOGICAL PERSPECTIVE 68, 68-71 (Richard J. Lundman ed., 1980); Wayland Pilcher, The Law and Practice of Field Interrogation, 58 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 465, 490 (1967) (finding that in a study conducted, "an overwhelming majority of the individuals stopped cooperated willingly with the police officer, if not out if a sense of civic duty at least with the attitude that this temporary delay be ended as quickly as possible").
365. See STANLEY MILGRAM, OBEDIENCE TO AUTHORITY 3-6 (1974). In this classic study, Milgram's subjects were commanded by an authority figure to give electric shocks to victims (who were part of the experimenter's team and not actually shocked) when the victims gave the "wrong response." See id. at 20. With each subsequent mistake, the subjects were told to turn up the voltage, to the point that the victims were allegedly in pain and expressed it loudly. See id. at 20-21, 23. Subjects who hesitated to inflict more pain with higher voltages were told they had to, and over sixty-five percent continued to administer shocks to the highest possible level. See id. at 21-23, 33.
366. See RUBINSTEIN, supra note 219, at 68-69; Leonard Bickman, The Social Power of a Uniform, 4 J. APPLIED SOC. PSYCHOLOGY 47, 49-51 (1974) (reporting from a study that when passersby were asked to perform a task by a nonuniformed citizen, a milkman, and a guard in a uniform resembling a police officer, more than 89% obeyed the guard, while only 33% obeyed the civilian, and 57% percent obeyed the milkman).
367. See RUBINSTEIN, supra note 219, at 68-69; Leonard Bickman, The Social Power of a Uniform, 4 J. APPLIED SOC. PSYCHOLOGY 47, 49-51 (1974) (reporting from a study that when passersby were asked to perform a task by a nonuniformed citizen, a milkman, and a guard in a uniform resembling a police officer, more than 89% obeyed the guard, while only 33% obeyed the civilian, and 57% percent obeyed the milkman).
368. See, e.g., Florida v. Bostick, 501 U.S. 429, 437 (1991) ("We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure."); Brown v. Texas, 443 U.S. 47, 52-53 (1979) (holding that the police cannot, under the Fourth Amendment, demand that an individual answer questions without reasonable suspicion of criminal activity). Otherwise, the law allowing citizens to refuse police requests to stop and talk without probable cause does not make any sense. Police could simply ask any question of anyone, and refusal to answer would create the probable cause not otherwise present.
369. See, e.g., Florida v. Bostick, 501 U.S. 429, 437 (1991) ("We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure."); Brown v. Texas, 443 U.S. 47, 52-53 (1979) (holding that the police cannot, under the Fourth Amendment, demand that an individual answer questions without reasonable suspicion of criminal activity). Otherwise, the law allowing citizens to refuse police requests to stop and talk without probable cause does not make any sense. Police could simply ask any question of anyone, and refusal to answer would create the probable cause not otherwise present.
370. See, e.g., ELIZABETH LOFTUS, EYEWITNESS TESTIMONY 175-76 (1979) (reporting that most people, when asked, knew that even a very subtle difference in the wording of a question could elicit remarkably different answers); Sam H. Verhovek, Referendum in Houston Shows Complexity of Preference Issue, N.Y. TIMES, Nov. 6, 1997, at A1 (stating that the failure of a ballot measure to end Houston's affirmative action policies was attributed to the precise wording as it appeared on the ballot).
371. See, e.g., ELIZABETH LOFTUS, EYEWITNESS TESTIMONY 175-76 (1979) (reporting that most people, when asked, knew that even a very subtle difference in the wording of a question could elicit remarkably different answers); Sam H. Verhovek, Referendum in Houston Shows Complexity of Preference Issue, N.Y. TIMES, Nov. 6, 1997, at A1 (stating that the failure of a ballot measure to end Houston's affirmative action policies was attributed to the precise wording as it appeared on the ballot).
372. Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. 1971), rev'd, 412 U.S. 218 (1973); see Schneckloth v. Bustamonte, 412 U.S. 218, 275-76 (1973) (Douglas, J., dissenting); id. at 289 (Marshall, J., dissenting).
373. Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. 1971), rev'd, 412 U.S. 218 (1973); see Schneckloth v. Bustamonte, 412 U.S. 218, 275-76 (1973) (Douglas, J., dissenting); id. at 289 (Marshall, J., dissenting).
374. Ohio v. Robinette, 117 S. Ct. 417, 419 (1996) (alteration in original) (quoting Appendix to Respondent's Brief at 2, Robinette (No. 95-891)).
375. See United States v. Place, 462 U.S. 696, 707 (1983).
376. It should be noted that the Court assumed in Place that dogs only detected contraband and did so accurately, so that there would be no intrusion unless contraband was found. See id. In fact, these dogs are not always accurate. See, e.g., Commonwealth v. Cass, No. 12 W.D. 1996, 1998 WL 3264, at *1 (Pa. Jan. 7, 1998) (describing a dog sniff that alerted to the presence of contraband in 18 lockers, but only one contained drugs); Doe v. Renfrow, 475 F. Supp. 1012, 1016-17 (N.D. Ind. 1979) (describing a school canine search in which a dog's affirmative alert forced a twelve year old girl, who was found to have played with a dog in heat earlier in the day, to be body searched, resulting in no contraband to be found, and of 50 other students dogs alerted to, only 17 had drugs), aff'd in part, 631 F.2d 91 (7th Cir. 1980).
377. It should be noted that the Court assumed in Place that dogs only detected contraband and did so accurately, so that there would be no intrusion unless contraband was found. See id. In fact, these dogs are not always accurate. See, e.g., Commonwealth v. Cass, No. 12 W.D. 1996, 1998 WL 3264, at *1 (Pa. Jan. 7, 1998) (describing a dog sniff that alerted to the presence of contraband in 18 lockers, but only one contained drugs); Doe v. Renfrow, 475 F. Supp. 1012, 1016-17 (N.D. Ind. 1979) (describing a school canine search in which a dog's affirmative alert forced a twelve year old girl, who was found to have played with a dog in heat earlier in the day, to be body searched, resulting in no contraband to be found, and of 50 other students dogs alerted to, only 17 had drugs), aff'd in part, 631 F.2d 91 (7th Cir. 1980).
378. It should be noted that the Court assumed in Place that dogs only detected contraband and did so accurately, so that there would be no intrusion unless contraband was found. See id. In fact, these dogs are not always accurate. See, e.g., Commonwealth v. Cass, No. 12 W.D. 1996, 1998 WL 3264, at *1 (Pa. Jan. 7, 1998) (describing a dog sniff that alerted to the presence of contraband in 18 lockers, but only one contained drugs); Doe v. Renfrow, 475 F. Supp. 1012, 1016-17 (N.D. Ind. 1979) (describing a school canine search in which a dog's affirmative alert forced a twelve year old girl, who was found to have played with a dog in heat earlier in the day, to be body searched, resulting in no contraband to be found, and of 50 other students dogs alerted to, only 17 had drugs), aff'd in part, 631 F.2d 91 (7th Cir. 1980).
379. See David A. Harris, Superman's X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology, 69 TEMPLE L. REV. 1, 7-14, 17-55 (1996) (surveying the capabilities and legal implications of new high technology weapons detection devices); Sniffing for Drugs by Testing Vapors, N.Y. TIMES, Oct. 9, 1991, at D6 (describing a new drug detection system that can identify vapors from minuscule particles of illegal drugs).
380. See David A. Harris, Superman's X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology, 69 TEMPLE L. REV. 1, 7-14, 17-55 (1996) (surveying the capabilities and legal implications of new high technology weapons detection devices); Sniffing for Drugs by Testing Vapors, N.Y. TIMES, Oct. 9, 1991, at D6 (describing a new drug detection system that can identify vapors from minuscule particles of illegal drugs).
381. AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE STANDARDS ON ELECTRONIC SURVEILLANCE RELATING TO TECHNOLOGICALLY-ASSISTED PHYSICAL SURVEILLANCE ii (draft 3d ed., 1997).
382. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
383. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
384. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
385. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
386. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
387. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
388. Of course, states could take other actions to make officers safer in encounters with drivers. For example, some states have outlawed darkly tinted glass for passenger vehicles, making it easier for officers to observe any dangerous activity. See, e.g., NEB. REV. STAT. ANN. § 60-6,257 (Michie 1995) (outlawing tints in rear or back side windows that have "a luminous reflectance of more than thirty-five percent or has light transmission of less than twenty percent"); cf. United States v. Stanfield, 109 F.3d 976, 988-89 (4th Cir.) (holding that because tinted windows prevented an officer making a traffic stop from seeing inside the vehicle, he reasonably opened the vehicle's doors to protect his safety), cert. denied, 118 S. Ct. 156 (1997). And technological approaches may help. See Intelligent Vehicle Highway Systems: Oversight Hearing on Firearms Technology: Using Innovation to Stop Gun Violence Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 104th Cong. (1994) (illustrating technologies that would "limit a firearm's use to its owner and/or authorized individual") (statement of Douglas R. Weiss, Project Manager, Smart Gun Technology Project, Sandia National Laboratories); Harris, supra note 228, at 9-10 (describing devices that conduct electronic frisks while an officer stays in the relative safety of the patrol car); Vincent Pennacchini, What's So Smart About the Smart Gun?, BUS. TIMES, Dec. 1, 1996, at 1 (stating that smart guns can be fired only by owners with proper transmitting equipment, like rings or bracelets); Jim Ritter, "Smart Gun" Takes Aim for Safety, CHI. SUN-TIMES, Oct 20, 1996, at 34 (reporting that the smart gun will not fire unless in the hand of a person wearing a ring that transmits a signal to the gun).
389. See supra note 159-161 and accompanying text.
390. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
391. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
392. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
393. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
394. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
395. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
396. Of course, there are ways to deal with narcotics in society other than making their use and possession illegal, which creates the black market that makes it worthwhile to risk high penalties to transport and sell these substances. We could consider some form of legalization or decriminalization, and any number of thoughtful people have recommended this. See, e.g., STEVEN B. DUKE & ALBERT C. GROSS, AMERICA'S LONGEST WAR 231-49 (1993) (discussing the legalization of drugs); William F. Buckley et al., The War on Drugs Is Lost, NAT'L REV., Feb. 12. 1996, at 34, 34-48 (reporting the opinions of numerous commentators on how drug prohibition has failed and what to do about it). And there are many examples of ways to deal with street crime without creating the difficulties highlighted here. For instance, if we think youth violence or violent crime in general are a problem worth focussing our energy on, we can use approaches successfully pioneered by Boston, New York and other cities in the past few years that have little impact on innocent people. See Fewer Youths Arrested for Violent Crime, ST. LOUIS POST-DISPATCH, Aug. 9, 1996, at 1A (attributing the decrease of the juvenile murder rate in New York to strict enforcement of quality of life offenses); Alison Mitchell, Clinton Likes Boston's Gains Against Youth Crime, SEATTLE POST-INTELLIGENCER, Feb. 20, 1997, at A3 (noting that Boston's dramatic reduction in juvenile homicides is attributed to intensive probation, aggressive law enforcement against truancy, graffiti, and various quality of life crimes); Richard Moran, New York Story: More Luck Than Policing, WASH. POST, Feb. 9, 1997, at C3 (stating that inroads have been made against crime by attacking low-level quality of life problems or the so-called "broken windows" theory); Christina Nifong, How Boston Brought Down Youth Crime, CHRISTIAN Sci. MONITOR, Feb. 20, 1997, at 14 (highlighting the Boston program's aggressive targeting of those youths most likely to commit crimes and a focus on gun selling); Mark Puls, New York's Approach Cuts City's Murder Rate, DETROIT NEWS, Jan. 3, 1997, at A3 (reporting that New York attacked crime with aggressive enforcement against quality of life offenses, "such as loitering, panhandling, prostitution, [and] loud music").
397. See, e.g., Paul Butler, Racially Based Jury Nullification: Black Power in-the Criminal Justice System, 105 YALE L.J. 677, 679 (1995) (advocating the use of jury nullification by African American jurors on behalf of African American defendants as a way of addressing injustices and racism in the system).
398. Whren was a unanimous decision. See Whren v. United States, 116 S. Ct. 1769, 1771 (1996). Robinette was an eight to one decision. See Ohio v. Robinette, 117 S. Ct. 417, 417 (1996). Wilson was a seven to two decision. See Maryland v. Wilson, 117 S. Ct. 882, 883 (1997).
399. For example, the Traffic Stops Statistics Act of 1997, H.R. 118, 105th Cong. (1997), takes the first step by calling for a rigorous statistical study of traffic stops. See id. § 2.
400. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
401. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162,
402. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
403. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
404. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
405. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
406. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
407. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).
408. For example, the suspicionless stops at sobriety checkpoints held constitutional in Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-55 (1990), were found on remand to violate Michigan's constitutional search and seizure provision. See Sitz v. Dep't of State Police, 506 N.W.2d 209, 224-25 (Mich. 1993). In Smith v. Maryland, 442 U.S. 735 (1979), the Court found that the use of a pen register was not a search under the Fourth Amendment. See id. at 745-46. The use of pen registers, however, have not been upheld under some state constitutions. See People v. Sporleder, 666 P.2d 135, 143-44 (Colo. 1983); State v. Rothman, 779 P.2d 1, 8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1165-67 (Idaho 1988). Also, in United States v. Place, 462 U.S. 696 (1983), the Court found that dog sniffs of luggage located in a public place was not a search. See id. at 707. State courts, however, have made differing interpretations regarding the intrusiveness of dog sniffs based on their own constitutions. See, e.g., McGahan v. State, 807 P.2d 506, 511 (Alaska Ct. App. 1991) (stating that a dog sniff of the exterior of a building accessible to the public is a search and requires reasonable suspicion); Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985) (finding that a dog sniff of luggage is a search); People v. Boylan, 854 P.2d 807, 810-11 (Colo. 1993) (en banc) (stating that a dog sniff of a private express courier package is a search); People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990) (finding that a dog sniff outside front door of residence, alerting police to contraband within, is a search).