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Volumn 80, Issue 2, 2000, Pages 545-575

The drive toward warrantless auto searches: Suggestions from a back seat driver

(1)  Steinberg, David E a  

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EID: 0034405743     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (2)

References (211)
  • 1
    • 0345913925 scopus 로고    scopus 로고
    • note
    • The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. CONST. amend. IV. According to the Supreme Court, the Fourth Amendment requires that police usually must obtain a warrant before they conduct a search that affects a suspect's reasonable expectation of privacy, although no language in the amendment explicitly requires a warrant. See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967) ("[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.").
  • 2
    • 0346545037 scopus 로고    scopus 로고
    • 526 U.S. 559 (1999)
    • 526 U.S. 559 (1999).
  • 3
    • 0347175308 scopus 로고    scopus 로고
    • 526 U.S. 295 (1999)
    • 526 U.S. 295 (1999).
  • 4
    • 0347175311 scopus 로고    scopus 로고
    • note
    • In June 1999, the Court also issued a brief per curiam opinion in Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013 (1999). In Dyson, the Court held that where a sheriff's deputy possessed probable cause to suspect that the defendant had cocaine in the trunk of his car, the deputy could conduct a warrantless search of the trunk. See id. at _, 119 S. Ct. at 2014. The Dyson Court reiterated that officers may search an auto without a warrant, even if the case does not involve exigent circumstances. See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (holding that warrantless auto searches are not limited to cases involving exigent circumstances).
  • 5
    • 0346545038 scopus 로고    scopus 로고
    • See discussion infra Part I.A
    • See discussion infra Part I.A.
  • 6
    • 0347805255 scopus 로고    scopus 로고
    • See discussion infra Part I.B.
    • See discussion infra Part I.B.
  • 7
    • 0347805256 scopus 로고    scopus 로고
    • See discussion infra Part I.C. Although this method of differentiating cases may seem arbitrary, I have used this organization only in an attempt to describe the legal doctrine
    • See discussion infra Part I.C. Although this method of differentiating cases may seem arbitrary, I have used this organization only in an attempt to describe the legal doctrine.
  • 8
    • 0346545022 scopus 로고    scopus 로고
    • note
    • 267 U.S. 132 (1925). [T]he Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Id. at 153.
  • 9
    • 0347175313 scopus 로고    scopus 로고
    • note
    • See id. at 155 (stating that a warrantless auto search does not violate the Fourth Amendment, where law enforcement officers have "reasonable or probable cause for the seizure").
  • 10
    • 0347805264 scopus 로고    scopus 로고
    • note
    • See Coolidge v. New Hampshire, 403 U.S. 443, 458-64 (1971) (plurality opinion) (holding a warrantless search of an auto parked in a driveway violated the Fourth Amendment).
  • 11
    • 0345913902 scopus 로고    scopus 로고
    • note
    • See, e.g., California v. Carney, 471 U.S. 386, 390-95 (1985) (holding that the automobile exception extends to a parked mobile home); Michigan v. Thomas, 458 U.S. 259, 261-62 (1982) (per curiam) (holding that an inventory search of a car after police had arrested the driver and before police had towed the auto did not violate the Fourth Amendment); Texas v. White, 423 U.S. 67, 67-69 (1975) (per curiam) (holding that police could conduct a warrantless search of an auto after towing the car); Cardwell v. Lewis, 417 U.S. 583, 588-92 (1974) (plurality opinion) (stating that police did not need a warrant to take a paint sample from the exterior of a car).
  • 12
    • 0347175305 scopus 로고    scopus 로고
    • 526 U.S. 559 (1999)
    • 526 U.S. 559 (1999).
  • 13
    • 0006799291 scopus 로고    scopus 로고
    • Florida Contraband Forfeiture Act, § 932.701-707 (West 1996 & Supp. 1999) ("Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of the [Act] shall be seized and shall be forfeited subject to the provisions of the [Act].")
    • Florida Contraband Forfeiture Act, FLA. STAT. ANN. § 932.701-707 (1997) (West 1996 & Supp. 1999) ("Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of the [Act] shall be seized and shall be forfeited subject to the provisions of the [Act].").
    • (1997) Fla. Stat. Ann.
  • 14
    • 0347805254 scopus 로고    scopus 로고
    • U.S. ("Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent's automobile in these circumstances.")
    • See White, 526 U.S. at 566 ("Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent's automobile in these circumstances.").
    • White , vol.526 , pp. 566
  • 15
    • 0347805278 scopus 로고    scopus 로고
    • Carroll v. United States, 267 U.S. 132, 153 (1925) (emphasizing the difference between an automobile and a stationary structure, such as a store or a dwelling)
    • Carroll v. United States, 267 U.S. 132, 153 (1925) (emphasizing the difference between an automobile and a stationary structure, such as a store or a dwelling).
  • 16
    • 0345913905 scopus 로고    scopus 로고
    • See, e.g., Chambers v. Maroney, 399 U.S. 42, 51 (1970) (holding that police who possess probable cause, may conduct a warrantless search of an auto stopped on the highway, because "the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained")
    • See, e.g., Chambers v. Maroney, 399 U.S. 42, 51 (1970) (holding that police who possess probable cause, may conduct a warrantless search of an auto stopped on the highway, because "the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained").
  • 17
    • 0347805271 scopus 로고    scopus 로고
    • U.S. (Stevens, J., dissenting) (questioning the propriety of a warrantless auto search "while the owner is safely in police custody")
    • See White, 526 U.S. at 570 (Stevens, J., dissenting) (questioning the propriety of a warrantless auto search "while the owner is safely in police custody").
    • White , vol.526 , pp. 570
  • 18
    • 0347175309 scopus 로고    scopus 로고
    • note
    • See id. at 562, 566 (reversing the Florida Supreme Court's decision, which held that exigent circumstances are required before the police may conduct a warrantless seizure of property under the Florida Contraband Forfeiture Act). See also Pennsylvania v. Labron, 518 U.S. 938, 939 (1996) (per curiam) (holding that the police could search two parked cars without a warrant, even though no exigent circumstances prevented the officers from obtaining a warrant); California v. Carney, 471 U.S. 386, 390-95 (1985) (holding that a warrantless search of a parked motor home did not violate the Fourth Amendment).
  • 19
    • 0345913930 scopus 로고    scopus 로고
    • note
    • Cady v. Dombrowski, 413 U.S. 433, 441-42 (1973) (observing that extensive regulation leads to greater "police-citizen contact involving automobiles" than "police-citizen contact in a home or office," and helps explain the "constitutional difference" between searches of automobiles and searches of residents).
  • 20
    • 0346545013 scopus 로고    scopus 로고
    • Current Fourth Amendment doctrine seems to allow the government to control those situations where a warrant is required. The government must obtain a warrant only where a search will affect a person's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). However, "[i]f the government can condition citizens to expect that certain intrusive searches and seizures will occur, then those searches and seizures, by definition, would not be unreasonable."
    • Current Fourth Amendment doctrine seems to allow the government to control those situations where a warrant is required. The government must obtain a warrant only where a search will affect a person's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). However, "[i]f the government can condition citizens to expect that certain intrusive searches and seizures will occur, then those searches and seizures, by definition, would not be unreasonable." Note, A Reconsideration of the Katz Expectation of Privacy Test, 76 MICH. L. REV. 154, 157-58 (1977).
  • 21
    • 0347805213 scopus 로고
    • A reconsideration of the katz expectation of privacy test
    • Note
    • Current Fourth Amendment doctrine seems to allow the government to control those situations where a warrant is required. The government must obtain a warrant only where a search will affect a person's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). However, "[i]f the government can condition citizens to expect that certain intrusive searches and seizures will occur, then those searches and seizures, by definition, would not be unreasonable." Note, A Reconsideration of the Katz Expectation of Privacy Test, 76 MICH. L. REV. 154, 157-58 (1977).
    • (1977) Mich. L. Rev. , vol.76 , pp. 154
  • 22
    • 0346545017 scopus 로고    scopus 로고
    • See, e.g., See v. City of Seattle, 387 U.S. 541, 550-52 (1967) (Clark, J., dissenting) (noting that extensive housing regulations exist in every major American city)
    • See, e.g., See v. City of Seattle, 387 U.S. 541, 550-52 (1967) (Clark, J., dissenting) (noting that extensive housing regulations exist in every major American city).
  • 23
    • 0347175304 scopus 로고    scopus 로고
    • note
    • See. e.g., Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) ("The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects."); United States v. Karo, 468 U.S. 705, 714-15 (1984) ("[S]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.").
  • 24
    • 0345913916 scopus 로고    scopus 로고
    • G.M. Leasing Corp. v. United States, 429 U.S. 338, 351 (1977) (finding that in a tax violation case, the government may seize an auto without a warrant)
    • G.M. Leasing Corp. v. United States, 429 U.S. 338, 351 (1977) (finding that in a tax violation case, the government may seize an auto without a warrant). Accord White, 526 U.S. at 566 (applying the G.M. Leasing analysis and concluding that "because the police seized respondent's vehicle from a public area - respondent's employer's parking lot - the warrantless seizure also did not invoke any invasion of respondent's privacy").
  • 25
    • 0345913893 scopus 로고    scopus 로고
    • 526 U.S. (applying the G.M. Leasing analysis and concluding that "because the police seized respondent's vehicle from a public area - respondent's employer's parking lot - the warrantless seizure also did not invoke any invasion of respondent's privacy")
    • G.M. Leasing Corp. v. United States, 429 U.S. 338, 351 (1977) (finding that in a tax violation case, the government may seize an auto without a warrant). Accord White, 526 U.S. at 566 (applying the G.M. Leasing analysis and concluding that "because the police seized respondent's vehicle from a public area - respondent's employer's parking lot - the warrantless seizure also did not invoke any invasion of respondent's privacy").
    • Accord White , pp. 566
  • 26
    • 0345913920 scopus 로고    scopus 로고
    • 417 U.S. 583 (1974) (plurality opinion)
    • 417 U.S. 583 (1974) (plurality opinion).
  • 27
    • 0346545023 scopus 로고    scopus 로고
    • Id. at 590 (finding that one has a "lesser expectation of privacy in a motor vehicle")
    • Id. at 590 (finding that one has a "lesser expectation of privacy in a motor vehicle").
  • 28
    • 0345913903 scopus 로고    scopus 로고
    • note
    • See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) ("[T]he Court has recognized, as a basic principle of Fourth Amendment law, that searches and seizures inside a home without a warrant are presumptively unreasonable.") (quoting Payton v. New York, 445 U.S. 573, 586 (1980)).
  • 29
    • 0345913897 scopus 로고    scopus 로고
    • U.S. (recognizing that "our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places")
    • See White, 526 U.S. at 565 (recognizing that "our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places").
    • White , vol.526 , pp. 565
  • 30
    • 0346545024 scopus 로고    scopus 로고
    • note
    • See id. at 566 (equating an employer's parking lot to a public area); see also Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (holding that the warrantless search of an automobile parked on a private driveway leading to a farmhouse did not violate the Fourth Amendment).
  • 31
    • 0345913901 scopus 로고    scopus 로고
    • California v. Carney, 471 U.S. 386, 391 (1985); South Dakota v. Opperman, 428 U.S. 364, 367 (1976)
    • California v. Carney, 471 U.S. 386, 391 (1985); South Dakota v. Opperman, 428 U.S. 364, 367 (1976).
  • 32
    • 0347175288 scopus 로고    scopus 로고
    • But cf. United States v. Chadwick, 433 U.S. 1, 13 (1977) (asserting that a citizen possesses a greater expectation of privacy in a locked footlocker than in an automobile)
    • But cf. United States v. Chadwick, 433 U.S. 1, 13 (1977) (asserting that a citizen possesses a greater expectation of privacy in a locked footlocker than in an automobile).
  • 33
    • 0346545036 scopus 로고    scopus 로고
    • note
    • For Fourth Amendment purposes, a container is "any object capable of holding another object." New York v. Belton, 453 U.S. 454, 460-61 n.4 (1981). "It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like." Id.
  • 34
    • 0347805279 scopus 로고    scopus 로고
    • See infra text accompanying notes 34-45
    • See infra text accompanying notes 34-45.
  • 35
    • 0346545029 scopus 로고    scopus 로고
    • note
    • See infra text accompanying notes 46-61. Presumably, where police possess both probable cause to search the auto and probable cause to search a closed container located inside of the auto, police may open the container without a warrant.
  • 36
    • 0347175294 scopus 로고    scopus 로고
    • 433 U.S. 1 (1977)
    • 433 U.S. 1 (1977).
  • 37
    • 0347805268 scopus 로고    scopus 로고
    • note
    • See id. at 15-16 (noting that before police could search a footlocker, the owner was "entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate"). The Court explicitly wrote that a citizen possesses a greater expectation of privacy in a footlocker than in an auto. See id. at 13. In Chadwick, the defendants had placed a footlocker in the open trunk of a car just before federal agents seized the footlocker. See id. at 4. However, the court did not treat Chadwick as an auto search case because the footlocker had only a "brief contact" with the defendant's auto. See id. at 11.
  • 38
    • 0346545028 scopus 로고    scopus 로고
    • 442 U.S. 753 (1979)
    • 442 U.S. 753 (1979).
  • 39
    • 0347805269 scopus 로고    scopus 로고
    • note
    • See id. at 761 ("Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband.").
  • 40
    • 0347175298 scopus 로고    scopus 로고
    • note
    • See id. at 763 ("[T]he State has failed to carry its burden of demonstrating the need for warrantless searches of luggage properly taken from automobiles.").
  • 41
    • 0347175297 scopus 로고    scopus 로고
    • note
    • See id. at 766 (holding that "the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations").
  • 42
    • 0347175303 scopus 로고    scopus 로고
    • 500 U.S. 565 (1991)
    • 500 U.S. 565 (1991).
  • 43
    • 0347805272 scopus 로고    scopus 로고
    • note
    • See id. at 579 (adopting "one clear-cut rule to govern automobile searches," and eliminating "the warrant requirement for closed containers set forth in Sanders").
  • 44
    • 0347175295 scopus 로고    scopus 로고
    • note
    • See id. at 580 ("Probable cause to believe that a container placed in a trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.") (quoting United States v. Ross, 456 U.S. 798, 824 (1982)).
  • 45
    • 0345913915 scopus 로고    scopus 로고
    • Id. at 580
    • Id. at 580.
  • 46
    • 0347175299 scopus 로고    scopus 로고
    • Id. at 598 (Stevens, J., dissenting)
    • Id. at 598 (Stevens, J., dissenting).
  • 47
    • 0345913913 scopus 로고    scopus 로고
    • note
    • See id. ("[S]urely it is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street yet to permit a search once the owner has placed the briefcase in the locked trunk of his car."). Justice Stevens would apply the same standard regardless of the location of the container. "In either location, if the police have probable cause, they are authorized to seize the luggage and to detain it until they obtain judicial approval for a search." Id.
  • 48
    • 0345913919 scopus 로고    scopus 로고
    • 456 U.S. 798 (1982)
    • 456 U.S. 798 (1982).
  • 49
    • 0346545034 scopus 로고    scopus 로고
    • See id. at 801 (describing the arrest of the defendant and search of his car)
    • See id. at 801 (describing the arrest of the defendant and search of his car).
  • 50
    • 0345913914 scopus 로고    scopus 로고
    • note
    • See id. The police found the brown paper bag after they had arrested the defendant. The police then moved the car to the police station and performed a more thorough search. At the police station, officers found a pouch in the trunk that contained $3200 in cash. See id.
  • 51
    • 0347805277 scopus 로고    scopus 로고
    • Id. at 825
    • Id. at 825.
  • 52
    • 0345913900 scopus 로고    scopus 로고
    • note
    • See id. at 822 ("This rule applies equally to all containers, as indeed we believe it must.").
  • 53
    • 0347175191 scopus 로고    scopus 로고
    • 526 U.S. 295 (1999)
    • 526 U.S. 295 (1999).
  • 54
    • 0345913812 scopus 로고    scopus 로고
    • note
    • See id. at 298 (noting that when the highway patrol officer asked the driver about the syringe, the driver replied "with refreshing candor" that he used the syringe to take drugs).
  • 55
    • 0347805181 scopus 로고    scopus 로고
    • note
    • Id. at 309 (Stevens, J., dissenting) ("The State conceded that the trooper who searched [the passenger's] purse lacked a warrant, consent or probable cause specific to the purse or passenger.").
  • 56
    • 0346544932 scopus 로고    scopus 로고
    • note
    • See id. 305-07 (eliminating any distinction between a search of a container owned by the driver of an automobile and a search of a container owned by a passenger riding in the automobile).
  • 57
    • 0347805180 scopus 로고    scopus 로고
    • Id. at 307
    • Id. at 307.
  • 58
    • 0345913813 scopus 로고    scopus 로고
    • Id. at 308 (Breyer, J. concurring)
    • Id. at 308 (Breyer, J. concurring).
  • 59
    • 0347805263 scopus 로고    scopus 로고
    • Id
    • Id.
  • 60
    • 0347175193 scopus 로고    scopus 로고
    • Id. at 303
    • Id. at 303.
  • 61
    • 0345913814 scopus 로고    scopus 로고
    • See id. at 310 (Stevens, J., dissenting)
    • See id. at 310 (Stevens, J., dissenting).
  • 62
    • 0346545018 scopus 로고    scopus 로고
    • note
    • See, e.g., Terry v. Ohio, 392 U.S. 1, 20 (1968) (holding that "police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. . . [and] in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances"). Although the warrant requirement usually would apply to a purse carried on a public street, a police officer might be able to avoid this requirement by resort to the search incident to arrest exception. If the officer possessed probable cause to believe that the woman's purse contained marijuana, the officer could arrest the woman. The search incident to arrest doctrine then would authorize a warrantless search of a purse within the suspect's immediate control. See United States v. Robinson, 414 U.S. 218, 220-37 (1973) (upholding a warrantless search of a cigarette package found in a suspect's coat, undertaken after an officer arrested the suspect for driving with a revoked learner's permit).
  • 63
    • 0345913851 scopus 로고    scopus 로고
    • 526 U.S. dissenting (where a passenger has boarded a taxi, "the rule the Court fashions would apparently permit a warrantless search of a passenger's briefcase if there is probable cause to believe the taxidriver had a syringe somewhere in his vehicle")
    • See Houghton, 526 U.S. at 310 (Stevens, J., dissenting) (where a passenger has boarded a taxi, "the rule the Court fashions would apparently permit a warrantless search of a passenger's briefcase if there is probable cause to believe the taxidriver had a syringe somewhere in his vehicle").
    • Houghton , pp. 310
    • Stevens, J.1
  • 64
    • 0347175290 scopus 로고    scopus 로고
    • See infra text accompanying notes 169-174
    • 6: See infra text accompanying notes 169-174.
  • 65
    • 0347805220 scopus 로고    scopus 로고
    • U.S. (noting that Houghton's purse became the subject of a police search when, "[i]n the early morning hours of July 23, 1995, a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light")
    • See California v. Acevedo, 500 U.S. 565, 580 (1991) (holding that where police reasonably believed that a paper bag located in the trunk of an automobile contained contraband, "a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment"). Officers may rely on a variety of traffic laws and other safety regulations to establish probable cause and justify a decision to stop a vehicle. For example, in Houghton the officers originally stopped the car that contained the passenger and her purse because the driver was speeding, and because one of the car's brake lights was not working. Houghton, 526 U.S. at 297 (noting that Houghton's purse became the subject of a police search when, "[i]n the early morning hours of July 23, 1995, a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light").
    • Houghton , vol.526 , pp. 297
  • 66
    • 0345913811 scopus 로고    scopus 로고
    • U.S. concurring (suggesting that a woman's purse attached to her person would "amount to a kind of 'outer clothing' . . . which under the Court's cases would properly receive increased protection")
    • See Houghton, 526 U.S. at 308 (Breyer, J., concurring) (suggesting that a woman's purse attached to her person would "amount to a kind of 'outer clothing' . . . which under the Court's cases would properly receive increased protection").
    • Houghton , vol.526 , pp. 308
    • Breyer, J.1
  • 67
    • 0347805183 scopus 로고    scopus 로고
    • note
    • See Chimel v. California, 395 U.S. 752, 763 (1969) ("There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.").
  • 68
    • 0347175289 scopus 로고    scopus 로고
    • note
    • See, e.g., United States v. Robinson, 414 U.S. 218, 234 (1973) (holding that an officer may conduct a warrantless search incident to arrest because of "the need to disarm the suspect in order to take him into custody," as well as "the need to preserve evidence on his person for later use at trial").
  • 69
    • 84859133657 scopus 로고    scopus 로고
    • U.S. (construing the suspect's area of "immediate control" to be "the area into which an arrestee might reach in order to grab a weapon or evidentiary items")
    • See Chimel, 395 U.S. at 763 (construing the suspect's area of "immediate control" to be "the area into which an arrestee might reach in order to grab a weapon or evidentiary items").
    • Chimel , vol.395 , pp. 763
  • 70
    • 0345913815 scopus 로고    scopus 로고
    • 453 U.S. 454 (1981)
    • 453 U.S. 454 (1981).
  • 71
    • 0346544964 scopus 로고    scopus 로고
    • See id. at 455-56
    • See id. at 455-56.
  • 72
    • 0347805182 scopus 로고    scopus 로고
    • See id. at 456
    • See id. at 456.
  • 73
    • 0347175225 scopus 로고    scopus 로고
    • See id. at 460
    • See id. at 460.
  • 74
    • 0347175192 scopus 로고    scopus 로고
    • note
    • See id. at 466 (Brennan, J., dissenting) (observing that when the auto search occurred, the four suspects "had been removed from the car, patted down, and separated - none of them could have reached the jackets [containing cocaine] that had been left on the back seat of the car").
  • 75
    • 0347805262 scopus 로고    scopus 로고
    • Id. at 460
    • Id. at 460.
  • 76
    • 0346544962 scopus 로고    scopus 로고
    • note
    • See Colorado v. Bertine, 479 U.S. 367, 371 (1987) ("[I]nventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment."); South Dakota v. Opperman, 428 U.S. 364, 376 (1976) (concluding that the inventory search of an impounded vehicle was reasonable).
  • 77
    • 0346544963 scopus 로고    scopus 로고
    • 428 U.S. 364 (1976)
    • 428 U.S. 364 (1976).
  • 78
    • 0346544961 scopus 로고    scopus 로고
    • note
    • See id. at 366 (describing the police inventory search, which occurred when the respondent's vehicle was impounded after two overtime parking tickets were issued).
  • 79
    • 0346545019 scopus 로고    scopus 로고
    • note
    • See id. at 376 ("[I]n following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not 'unreasonable' under the Fourth Amendment.").
  • 80
    • 0347805253 scopus 로고    scopus 로고
    • note
    • See id. at 369 (noting that inventory searches are designed to protect an auto owner's property, to protect the police against claims over lost or stolen property and to protect the police from dangerous items that may be located within a car).
  • 81
    • 0346545014 scopus 로고    scopus 로고
    • note
    • See Florida v. White, 526 U.S. 559, 561 (1999) (reporting that on three occasions, police officers had observed White "using his car to deliver cocaine, and thereby developed probable cause to believe that his car was subject to forfeiture").
  • 82
    • 0345913840 scopus 로고    scopus 로고
    • See id. at 562
    • See id. at 562.
  • 83
    • 0347805163 scopus 로고
    • Car 54 - How dare you.': Toward a unified theory of warrantless automobile searches
    • In inventory search cases, "natural curiosity and official vigilance lead some officers to conduct in-depth inventories that go far beyond what is necessary to serve the interests asserted as justification for them." Eldon D. Wedlock, Jr., Car 54 - How Dare You.': Toward a Unified Theory of Warrantless Automobile Searches, 15 MARQ. L. REV. 79, 130 (1991).
    • (1991) Marq. L. Rev. , vol.15 , pp. 79
    • Wedlock E.D., Jr.1
  • 84
    • 0347175287 scopus 로고    scopus 로고
    • note
    • See Coolidge v. New Hampshire, 403 U.S. 443, 467-68 (1971) (plurality opinion) ("Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous - to the evidence or to the police themselves - to require them to ignore it until they have obtained a warrant particularly describing it.").
  • 85
    • 0345913896 scopus 로고    scopus 로고
    • note
    • See, e.g., Whren v. United States, 517 U.S. 806, 808-09 (1996) (upholding the seizure of two large plastic bags of crack cocaine, which police observed in plain view after making a traffic stop); New York v. Belton, 453 U.S. 454, 455-56 (1981) (upholding a warrantless search, in which police discovered marijuana and cocaine in a car after stopping the driver for speeding); Gustafson v. Florida, 414 U.S. 260, 261-63 (1973) (upholding a warrantless search, in which police discovered marijuana inside of a driver's coat after police had stopped the suspect for reckless driving and driving without a license).
  • 86
    • 0347175229 scopus 로고    scopus 로고
    • 460 U.S. 730 (1983)
    • 460 U.S. 730 (1983).
  • 87
    • 0347175286 scopus 로고    scopus 로고
    • note
    • See id. at 733-35 (noting that after a routine driver's license checkpoint stop, a plain view search of an automobile revealed heroin).
  • 88
    • 0347175228 scopus 로고    scopus 로고
    • See id. at 734
    • See id. at 734.
  • 89
    • 0346544960 scopus 로고    scopus 로고
    • See id. at 734-35 (describing the warrantless auto search)
    • See id. at 734-35 (describing the warrantless auto search).
  • 90
    • 0346544966 scopus 로고    scopus 로고
    • note
    • See id. at 735-44 (upholding the warrantless search under the plain view exception). Similarly, an officer's plain view observation of a hypodermic syringe resting in the pocket of an auto driver culminated in a warrantless search of a passenger's purse. See Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (concluding that the search of the purse did not violate the Fourth Amendment).
  • 91
    • 0345913841 scopus 로고    scopus 로고
    • note
    • See. e.g., Patterson v. Illinois, 487 U.S. 285, 292 (1988) (discussing the circumstances under which a suspect may waive his Sixth Amendment right to counsel during a police interrogation); Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding that during police questioning, a murder suspect waived his Fifth Amendment privilege against self-incrimination).
  • 92
    • 0346544965 scopus 로고    scopus 로고
    • note
    • A suspect's consent to a search waives Fourth Amendment protections, even if the suspect did not realize that he could refuse to give his consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973) ("Implicit in all of these cases is the recognition that knowledge of a right to refuse is not a prerequisite of a voluntary consent.").
  • 93
    • 0347175283 scopus 로고    scopus 로고
    • 500 U.S. 248 (1991)
    • 500 U.S. 248 (1991).
  • 94
    • 0345913853 scopus 로고    scopus 로고
    • note
    • See id. at 249-50 ("Jimeno stated that he had nothing to hide and gave [the officer] permission to search the automobile.").
  • 95
    • 0345913895 scopus 로고    scopus 로고
    • 93 See id. at 250
    • 93 See id. at 250.
  • 96
    • 0347805219 scopus 로고    scopus 로고
    • note
    • See id. at 251 ("[I]t was objectively reasonable for the police to conclude that the general consent to search respondents' car included consent to search containers within that car which might bear drugs.").
  • 97
    • 0347175285 scopus 로고    scopus 로고
    • note
    • See United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (asserting that "maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border").
  • 98
    • 0347175280 scopus 로고    scopus 로고
    • See Texas v. Brown, 460 U.S. 730, 733 (1983) (upholding a warrantless stop of a driver at a license checkpoint)
    • See Texas v. Brown, 460 U.S. 730, 733 (1983) (upholding a warrantless stop of a driver at a license checkpoint).
  • 99
    • 0347175284 scopus 로고    scopus 로고
    • note
    • See Michigan Department of State Police v. Sitz, 496 U.S. 444, 455 (1990) ("In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.").
  • 100
    • 0347805215 scopus 로고    scopus 로고
    • U.S. ("We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.")
    • Sitz involved random checks for intoxicated drivers, with the average detention lasting about 25 seconds. The Sitz Court intimated that the justices would not permit more significant detentions. See Sitz, 496 U.S. at 450-51 ("We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.").
    • Sitz , vol.496 , pp. 450-451
  • 101
    • 0347805218 scopus 로고    scopus 로고
    • See supra text accompanying notes 82-88
    • See supra text accompanying notes 82-88.
  • 102
    • 0345913856 scopus 로고    scopus 로고
    • See supra text accompanying notes 89-94
    • See supra text accompanying notes 89-94.
  • 103
    • 0345913857 scopus 로고    scopus 로고
    • See supra text accompanying notes 65-73
    • See supra text accompanying notes 65-73.
  • 104
    • 0345913855 scopus 로고    scopus 로고
    • See supra text accompanying notes 74-81
    • See supra text accompanying notes 74-81.
  • 105
    • 0347175281 scopus 로고    scopus 로고
    • See Wyoming v. Houghton, 526 U.S. 295, 297 (1999)
    • See Wyoming v. Houghton, 526 U.S. 295, 297 (1999).
  • 106
    • 0346545012 scopus 로고    scopus 로고
    • note
    • See id, at 298 ("While questioning [the driver], the officer noticed a hypodermic syringe in [the driver's] shirt pocket.").
  • 107
    • 0346545011 scopus 로고    scopus 로고
    • See id
    • See id.
  • 108
    • 0347805252 scopus 로고    scopus 로고
    • See id. at 307
    • See id. at 307.
  • 109
    • 0032366626 scopus 로고    scopus 로고
    • Car wars: The fourth amendment's death on the highway
    • "Indeed, it is no exaggeration to say that in cases involving cars, the Fourth Amendment is all but dead."
    • See David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 GEO. WASH. L. REV. 556, 556 (1998) ("Indeed, it is no exaggeration to say that in cases involving cars, the Fourth Amendment is all but dead."); see also Peter C. Prynkiewicz, Comment, California v. Acevedo: The Court Establishes One Rule to Govern all Automobile Searches and Opens the Door to Another "Frontal Assault" on the Warrant Requirement, 67 NOTRE DAME L. REV. 1269, 1286 (1992) (suggesting that as a result of the Court's reluctance to require a warrant in auto search cases, "the door is now wide open to another frontal assault upon the Warrant Clause").
    • (1998) Geo. Wash. L. Rev. , vol.66 , pp. 556
    • Harris, D.A.1
  • 110
    • 0032366626 scopus 로고    scopus 로고
    • The court establishes one rule to govern all automobile searches and opens the door to another "frontal assault" on the warrant requirement
    • Comment, California v. Acevedo: suggesting that as a result of the Court's reluctance to require a warrant in auto search cases, "the door is now wide open to another frontal assault upon the Warrant Clause"
    • See David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 GEO. WASH. L. REV. 556, 556 (1998) ("Indeed, it is no exaggeration to say that in cases involving cars, the Fourth Amendment is all but dead."); see also Peter C. Prynkiewicz, Comment, California v. Acevedo: The Court Establishes One Rule to Govern all Automobile Searches and Opens the Door to Another "Frontal Assault" on the Warrant Requirement, 67 NOTRE DAME L. REV. 1269, 1286 (1992) (suggesting that as a result of the Court's reluctance to require a warrant in auto search cases, "the door is now wide open to another frontal assault upon the Warrant Clause").
    • (1992) Notre Dame L. Rev. , vol.67 , pp. 1269
    • Prynkiewicz, P.C.1
  • 111
    • 0345913801 scopus 로고    scopus 로고
    • The supreme court's improbable justifications for restriction of citizens' fourth amendment privacy expectations in automobiles
    • asserting that the Supreme Court has ignored "its own judicial principles in permitting a broad range of warrantless government intrusions into automobiles"
    • See California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring in the judgment) (asserting that the Supreme Court's "intricate body of law regarding 'reasonable expectation of privacy' has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth Amendment 'search' and therefore not subject to the general warrant requirement"); see also James A. Adams, The Supreme Court's Improbable Justifications for Restriction of Citizens' Fourth Amendment Privacy Expectations in Automobiles, 47 DRAKE L. REV. 833, 836 (1999) (asserting that the Supreme Court has ignored "its own judicial principles in permitting a broad range of warrantless government intrusions into automobiles").
    • (1999) Drake L. Rev. , vol.47 , pp. 833
    • Adams, J.A.1
  • 112
    • 0347175282 scopus 로고    scopus 로고
    • note
    • See, e.g., Mapp v. Ohio, 367 U.S. 643, 650-53 (1961) (endorsing the deterrent effect of the exclusionary rule); McDonald v. United States, 335 U.S. 451, 455 (1948) (noting that through the warrant requirement, "the Fourth Amendment has interposed a magistrate between the citizen and the police").
  • 113
    • 0347805223 scopus 로고    scopus 로고
    • note
    • See, e.g., Trupiano v. United States, 334 U.S. 699, 705 (1948) ("In their understandable zeal to ferret out crime and in the excitement of the capture of a suspected person, officers are less likely to possess the detachment and neutrality with which the constitutional rights of the suspect must be viewed."); United States v. Lefkowitz, 285 U.S. 452, 464 (1932) (noting that the Fourth Amendment protections are more reliably entrusted to the warrant process than "the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime").
  • 114
    • 0347805221 scopus 로고    scopus 로고
    • note
    • See Johnson v. United States, 333 U.S. 10, 14 (1948) (stating that the warrant process interposes the judgment of a neutral and detached magistrate between citizens and "the officer engaged in the often competitive enterprise of ferreting out crime").
  • 115
    • 0346544982 scopus 로고    scopus 로고
    • U.S. (holding that the exclusionary rule applies in state court cases); Weeks v. United States, 232 U.S. 383, 398 (1914) (holding that federal courts must exclude evidence obtained in violation of the Fourth Amendment)
    • See, e.g., Mapp, 367 U.S. at 655 (holding that the exclusionary rule applies in state court cases); Weeks v. United States, 232 U.S. 383, 398 (1914) (holding that federal courts must exclude evidence obtained in violation of the Fourth Amendment).
    • Mapp , vol.367 , pp. 655
  • 116
    • 0005010208 scopus 로고
    • The world without a fourth amendment
    • arguing that the warrant process appropriately forces "investigatory officials to justify their actions before the fact"
    • See Christopher Slobogin. The World Without A Fourth Amendment, 39 UCLA L. REV. 1, 12 (1991) (arguing that the warrant process appropriately forces "investigatory officials to justify their actions before the fact").
    • (1991) UCLA L. Rev. , vol.39 , pp. 1
    • Slobogin, C.1
  • 117
    • 0005032239 scopus 로고
    • The incredible shrinking fourth amendment
    • "[T]he very fact that to obtain a warrant the police must present their evidence to a magistrate and record it under oath in an affidavit . . . may discourage them from seeking a warrant unless their basis for it is firm."
    • See Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 302 (1984) ("[T]he very fact that to obtain a warrant the police must present their evidence to a magistrate and record it under oath in an affidavit . . . may discourage them from seeking a warrant unless their basis for it is firm.").
    • (1984) Am. Crim. L. Rev. , vol.21 , pp. 257
    • Wasserstrom, S.J.1
  • 118
    • 0347175247 scopus 로고    scopus 로고
    • See Slobogin, supra note 113, at 10 n.25 (citing a study by the National Center for State Courts, which found that the warrant requirement forced officers to think about meeting the probable cause standard prior to initiating a search)
    • See Slobogin, supra note 113, at 10 n.25 (citing a study by the National Center for State Courts, which found that the warrant requirement forced officers to think about meeting the probable cause standard prior to initiating a search).
  • 119
    • 0347175248 scopus 로고
    • reporting that police officers "believe that the search warrant procedure is overly technical and time-consuming"
    • See, e.g., California v. Acevedo, 500 U.S. 565, 584 (1991) (Scalia, J., concurring in the judgment) (arguing that the Court's statement "that a warrant is always required . . . confuses rather than facilities any attempt to develop rules of reasonableness"); Robbins v. California, 453 U.S. 420, 439 (1981) (Rehnquist, J., dissenting) (describing the warrant requirement as "an edifice without solid foundation" and "with little substance"); LAWRENCE P. TIFFANY ET. AL. DETECTION OF CRIME 159 (Frank J. Remington ed. 1967) (reporting that police officers "believe that the search warrant procedure is overly technical and time-consuming"); Donald Dripps, Living With Leon, 95 YALE L.J. 906, 926-27 (1986) (noting that because obtaining a warrant will be difficult, police will try to obtain evidence through some other method, such as a consent search); see also William J. Stuntz, Warrants and Fourth Amendment Remedies, 11 VA. L. REV. 881, 908 (1991) (acknowledging that "getting warrants is such a hassle for police officers").
    • (1967) Lawrence P. Tiffany Et. Al. Detection Of Crime , vol.159
    • Remington, F.J.1
  • 120
    • 84928449676 scopus 로고
    • Living with Leon
    • noting that because obtaining a warrant will be difficult, police will try to obtain evidence through some other method, such as a consent search
    • See, e.g., California v. Acevedo, 500 U.S. 565, 584 (1991) (Scalia, J., concurring in the judgment) (arguing that the Court's statement "that a warrant is always required . . . confuses rather than facilities any attempt to develop rules of reasonableness"); Robbins v. California, 453 U.S. 420, 439 (1981) (Rehnquist, J., dissenting) (describing the warrant requirement as "an edifice without solid foundation" and "with little substance"); LAWRENCE P. TIFFANY ET. AL. DETECTION OF CRIME 159 (Frank J. Remington ed. 1967) (reporting that police officers "believe that the search warrant procedure is overly technical and time-consuming"); Donald Dripps, Living With Leon, 95 YALE L.J. 906, 926-27 (1986) (noting that because obtaining a warrant will be difficult, police will try to obtain evidence through some other method, such as a consent search); see also William J. Stuntz, Warrants and Fourth Amendment Remedies, 11 VA. L. REV. 881, 908 (1991) (acknowledging that "getting warrants is such a hassle for police officers").
    • (1986) Yale L.J. , vol.95 , pp. 906
    • Dripps, D.1
  • 121
    • 0042874983 scopus 로고
    • Warrants and fourth amendment remedies
    • acknowledging that "getting warrants is such a hassle for police officers"
    • See, e.g., California v. Acevedo, 500 U.S. 565, 584 (1991) (Scalia, J., concurring in the judgment) (arguing that the Court's statement "that a warrant is always required . . . confuses rather than facilities any attempt to develop rules of reasonableness"); Robbins v. California, 453 U.S. 420, 439 (1981) (Rehnquist, J., dissenting) (describing the warrant requirement as "an edifice without solid foundation" and "with little substance"); LAWRENCE P. TIFFANY ET. AL. DETECTION OF CRIME 159 (Frank J. Remington ed. 1967) (reporting that police officers "believe that the search warrant procedure is overly technical and time-consuming"); Donald Dripps, Living With Leon, 95 YALE L.J. 906, 926-27 (1986) (noting that because obtaining a warrant will be difficult, police will try to obtain evidence through some other method, such as a consent search); see also William J. Stuntz, Warrants and Fourth Amendment Remedies, 11 VA. L. REV. 881, 908 (1991) (acknowledging that "getting warrants is such a hassle for police officers").
    • (1991) Va. L. Rev. , vol.11 , pp. 881
    • Stuntz, W.J.1
  • 122
    • 0345913858 scopus 로고    scopus 로고
    • note
    • Some statistical evidence suggests that police are not very accurate or efficient in their decisions to stop and search autos. See. e.g., Harris, supra note 107, at 581 (describing a North Carolina study of highway patrol officers, which found that in 1995, the agency's drug interdiction team "searched 3501 vehicles and found drugs in 210 - about one in every seventeen cars searched").
  • 123
    • 0347175242 scopus 로고    scopus 로고
    • note
    • See Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (noting that a police officer possesses probable cause only where the facts and circumstances would cause a reasonable person to believe that a specifically described item is located in the place that the officer is searching).
  • 124
    • 0346544985 scopus 로고    scopus 로고
    • See Florida v. White, 526 U.S. 559, 572-73 (1999) (Stevens, J., dissenting)
    • See Florida v. White, 526 U.S. 559, 572-73 (1999) (Stevens, J., dissenting).
  • 125
    • 0345913860 scopus 로고    scopus 로고
    • note
    • See Johnson v. United States, 333 U.S. 10, 14-15 (1948) (noting that while generally an officer must obtain a search warrant by presenting probable cause findings before a magistrate, in "exceptional circumstances" an officer may demonstrate probable cause after the fact to justify a warrantless search).
  • 126
    • 0347175243 scopus 로고    scopus 로고
    • See Stuntz, supra note 116, at 911 ("In almost any after-the-fact system of adjudication, decisionmakers must determine whether behavior was appropriate after they know how the behavior turned out.")
    • See Stuntz, supra note 116, at 911 ("In almost any after-the-fact system of adjudication, decisionmakers must determine whether behavior was appropriate after they know how the behavior turned out.").
  • 127
    • 0347805224 scopus 로고    scopus 로고
    • note
    • See, e.g., Katz v. United States, 389 U.S. 347, 358 (1967) (asserting that if officers could wiretap a public telephone booth without a warrant, the officers might base their probable cause determination on "an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment") (quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)).
  • 128
    • 0345913859 scopus 로고    scopus 로고
    • note
    • The search will violate the Fourth Amendment unless the police officer is able to rely on one of the exceptions to the warrant requirement and the probable cause requirement. See supra text accompanying notes 8-108. Exceptions such as the inventory search or the consent search excuse officers not only from the warrant requirement, but also from the requirement of probable cause. See supra text accompanying notes 74-81 and 89-94.
  • 129
    • 0346544983 scopus 로고    scopus 로고
    • See Wasserstrom, supra note 114, at 300 ("[P]olice are rarely made to pay for their mistakes because postsearch remedies for their unreasonable conduct are inadequate.")
    • See Wasserstrom, supra note 114, at 300 ("[P]olice are rarely made to pay for their mistakes because postsearch remedies for their unreasonable conduct are inadequate.").
  • 130
    • 0347175236 scopus 로고    scopus 로고
    • For a number of reasons, successful Fourth Amendment damage suits are few and far between. First, the victim may be unaware that she possesses a valid civil action. Second, even if the victim is aware that her suit is likely to succeed, she may decline to sue in fear of police retaliation. Third, the victim may be unable to retain an attorney who is interested in suing police officers. Fourth, police may rely on their good faith belief in the legality of their search as a defense. Fifth, police officers are likely to appear particularly credible to the trier of fact - especially if some evidence suggests that the plaintiff has engaged in criminal misconduct. Sixth, the victim of an improper auto search may have difficulty proving any compensable damages
    • For a number of reasons, successful Fourth Amendment damage suits are few and far between. First, the victim may be unaware that she possesses a valid civil action. Second, even if the victim is aware that her suit is likely to succeed, she may decline to sue in fear of police retaliation. Third, the victim may be unable to retain an attorney who is interested in suing police officers. Fourth, police may rely on their good faith belief in the legality of their search as a defense. Fifth, police officers are likely to appear particularly credible to the trier of fact - especially if some evidence suggests that the plaintiff has engaged in criminal misconduct. Sixth, the victim of an improper auto search may have difficulty proving any compensable damages. See William A. Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo. L.J. 1361, 1386-89 ( 1981 ) (summarizing the reasons that plaintiffs rarely bring Fourth Amendment civil suits).
  • 131
    • 0042876000 scopus 로고
    • Deterring fourth amendment violations: Alternatives to the exclusionary rule
    • summarizing the reasons that plaintiffs rarely bring Fourth Amendment civil suits
    • For a number of reasons, successful Fourth Amendment damage suits are few and far between. First, the victim may be unaware that she possesses a valid civil action. Second, even if the victim is aware that her suit is likely to succeed, she may decline to sue in fear of police retaliation. Third, the victim may be unable to retain an attorney who is interested in suing police officers. Fourth, police may rely on their good faith belief in the legality of their search as a defense. Fifth, police officers are likely to appear particularly credible to the trier of fact - especially if some evidence suggests that the plaintiff has engaged in criminal misconduct. Sixth, the victim of an improper auto search may have difficulty proving any compensable damages. See William A. Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo. L.J. 1361, 1386-89 ( 1981 ) (summarizing the reasons that plaintiffs rarely bring Fourth Amendment civil suits).
    • (1981) Geo. L.J. , vol.69 , pp. 1361
    • Schroeder, W.A.1
  • 132
    • 0347175246 scopus 로고    scopus 로고
    • note
    • See id. at 1389 ("[T]he plaintiff may be unable to prove actual damages because a search ordinarily does not directly injure a person or his property.").
  • 133
    • 21144463861 scopus 로고
    • The walls close in on the warrant requirement
    • California v. Acevedo: "[T]he risks of hindsight justification are sufficient to demand advance showings of cause under oath."
    • See, e.g., James J. Tomkovicz, California v. Acevedo: The Walls Close in on the Warrant Requirement. 29 AM. CRIM. L. REV. 1103. 1164 (1992) ("[T]he risks of hindsight justification are sufficient to demand advance showings of cause under oath.").
    • (1992) Am. Crim. L. Rev. , vol.29 , pp. 1103
    • Tomkovicz, J.J.1
  • 134
    • 21344496009 scopus 로고
    • The future of state and federal civil rights prosecutions: The lessons of the Rodney King trial
    • describing the police encounter with Rodney King
    • On March 3, 1991, four Los Angeles police officers stopped a white Hyundai auto. The car was driven by Rodney King, an African-American man. The officers allegedly suspected that King was driving while intoxicated, and that King had violated other traffic laws. After ordering King out of the car, three of the officers brutally beat King. The fourth officer supervised the beating. See, e.g., Laurie L. Levenson, The Future of State and Federal Civil Rights Prosecutions: The Lessons of the Rodney King Trial, 41 UCLA L. REV. 509, 516-23 (1994) (describing the police encounter with Rodney King); K. Winchester Gaines, Race, Venue and the Rodney King Case: Can Batson Save the Vicinage Community?, 73 U. DET. MERCY L. REV. 271, 274-75 (1996) (same).
    • (1994) UCLA L. Rev. , vol.41 , pp. 509
    • Levenson, L.L.1
  • 135
    • 84937271588 scopus 로고    scopus 로고
    • Race, venue and the Rodney King case: Can Batson save the vicinage community?
    • same
    • On March 3, 1991, four Los Angeles police officers stopped a white Hyundai auto. The car was driven by Rodney King, an African-American man. The officers allegedly suspected that King was driving while intoxicated, and that King had violated other traffic laws. After ordering King out of the car, three of the officers brutally beat King. The fourth officer supervised the beating. See, e.g., Laurie L. Levenson, The Future of State and Federal Civil Rights Prosecutions: The Lessons of the Rodney King Trial, 41 UCLA L. REV. 509, 516-23 (1994) (describing the police encounter with Rodney King); K. Winchester Gaines, Race, Venue and the Rodney King Case: Can Batson Save the Vicinage Community?, 73 U. DET. MERCY L. REV. 271, 274-75 (1996) (same).
    • (1996) U. Det. Mercy L. Rev. , vol.73 , pp. 271
    • Gaines, K.W.1
  • 136
    • 0347175279 scopus 로고    scopus 로고
    • note
    • See Harris, supra note 107, at 576 ("Put simply, no activity is common to more Americans than driving a car."): Wedlock, supra note 81, at 79 ("Countless tradespeople, artisans, and laborers spend their work day with a car or truck close at hand. To some, motor vehicles serve as mobile offices and communications centers.").
  • 137
    • 0345913894 scopus 로고    scopus 로고
    • note
    • See, e.g., United States v. Karo, 468 U.S. 705, 714-15 (1984) ("Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances."); Steagald v. United States, 451 U.S. 204, 211 (1981) ("[W]e have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant.").
  • 138
    • 0347805227 scopus 로고    scopus 로고
    • note
    • See. e.g., Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (concluding that auto occupants have a reduced privacy expectation, as cars are "subjected to police stop and examination to enforce 'pervasive' governmental controls as an everyday occurrence") (quoting South Dakota v. Opperman, 428 U.S. 364, 368 (1976)); Whren v. United States, 517 U.S. 806, 818 (1996) (acknowledging that traffic ordinances often are numerous and difficult to obey); Cady v. Dombrowski, 413 U.S. 433, 441 (1973) ("States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.").
  • 139
    • 0345913854 scopus 로고    scopus 로고
    • U.S. ("Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability," and perform "community caretaking functions.")
    • See Cady, 413 U.S. at 441 ("Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability," and perform "community caretaking functions.").
    • Cady , vol.413 , pp. 441
  • 140
    • 0345913892 scopus 로고    scopus 로고
    • Id
    • Id.
  • 141
    • 0347805225 scopus 로고    scopus 로고
    • See New York v. Belton, 453 U.S. 454, 455-56 (1981) (describing a speeding arrest that led to a search of the defendant's person and auto that uncovered cocaine)
    • See New York v. Belton, 453 U.S. 454, 455-56 (1981) (describing a speeding arrest that led to a search of the defendant's person and auto that uncovered cocaine).
  • 142
    • 0346544984 scopus 로고    scopus 로고
    • U.S. (describing how police discovered methamphetamine in a passenger's purse after officers had stopped a car because the driver was speeding and driving with a faulty brake light)
    • See Houghton, 526 U.S. at 297-98 (describing how police discovered methamphetamine in a passenger's purse after officers had stopped a car because the driver was speeding and driving with a faulty brake light).
    • Houghton , vol.526 , pp. 297-298
  • 143
    • 0346545010 scopus 로고    scopus 로고
    • note
    • See Florida v. Jimeno, 500 U.S. 248, 249-50 (1991) (explaining that after a police officer stopped the defendant when he made a right turn on a red light without stopping, the officer discovered cocaine during a consent search of the defendant's auto).
  • 144
    • 0347175249 scopus 로고    scopus 로고
    • note
    • See Whren v. United States, 517 U.S. 806, 808-09 (1996) (indicating that after police stopped the defendant's auto when the defendant made a sharp right turn without signaling, the officers discovered cocaine in plain view).
  • 145
    • 0347805249 scopus 로고    scopus 로고
    • note
    • See South Dakota v. Opperman, 428 U.S. 364, 365-66 (1976) (stating that after towing the defendant's illegally parked car, police conducted an inventory search and discovered marijuana).
  • 146
    • 0345913891 scopus 로고    scopus 로고
    • note
    • See United States v. Robinson, 414 U.S. 218, 220-23 (1973) (describing a police search that uncovered heroin on the defendant's person, after officers arrested the defendant because he was driving with a revoked learner's permit).
  • 147
    • 0347175278 scopus 로고    scopus 로고
    • note
    • See Texas v. Brown, 460 U.S. 730, 733-35 (1983) (describing how police officers discovered heroin in the defendant's car, after the officers had stopped the defendant's car at a driver's license checkpoint).
  • 148
    • 0347175277 scopus 로고    scopus 로고
    • note
    • See, e.g., Whren v. United States, 517 U.S. 806, 808 (1996) (noting that when a truck with youthful occupants and a temporary license plate aroused suspicions of police officers, the officers followed the truck until the driver began speeding, and the truck turned right without signaling); Florida v. Jimeno, 500 U.S. 248, 249 (1991) (explaining that after hearing Jimeno conduct an incriminating phone conversation, the officer followed Jimeno until the suspect made a right turn on a red light without stopping).
  • 149
    • 0345913890 scopus 로고    scopus 로고
    • note
    • See Delaware v. Prouse, 440 U.S. 648, 657 (1979) (suggesting that auto stops by police may involve an "unsettling show of authority," and "may create substantial anxiety").
  • 150
    • 0347805222 scopus 로고    scopus 로고
    • See Adams, supra note 108, at 844 ("Safety of the officer and preservation of evidence will normally be best served by immediate search of the individual."); cf. Chambers v. Maroney, 399 U.S. 42, 52 n.10 (1970) (allowing police officers to tow a car to a secure place before conducting a warrantless search of the vehicle, where an immediate search would be "impractical and perhaps not safe for the officers")
    • See Adams, supra note 108, at 844 ("Safety of the officer and preservation of evidence will normally be best served by immediate search of the individual."); cf. Chambers v. Maroney, 399 U.S. 42, 52 n.10 (1970) (allowing police officers to tow a car to a secure place before conducting a warrantless search of the vehicle, where an immediate search would be "impractical and perhaps not safe for the officers").
  • 151
    • 84928457812 scopus 로고
    • A little-noticed case with disturbing implications
    • New York v. Class: "Undoubtedly, the Court has been keenly aware of the hazards associated with police-citizen encounters and has given attention to the possible dangers related to the stopping of motorists by police."
    • See United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (citing Federal Bureau of Investigation statistics, which "indicate that a significant percentage of murders of police officers occur when the officers are making traffic stops"); see also Adams v. Williams, 407 U.S. 143, 148 n.3 (1972) (citing a study, which reported that "approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile"); Tracey Maclin, New York v. Class: A Little-Noticed Case With Disturbing Implications, 78 J. CRIM. L. & CRIMINOLOGY 1, 39 (1987) ("Undoubtedly, the Court has been keenly aware of the hazards associated with police-citizen encounters and has given attention to the possible dangers related to the stopping of motorists by police.").
    • (1987) J. Crim. L. & Criminology , vol.78 , pp. 1
    • Maclin, T.1
  • 152
    • 25744442115 scopus 로고    scopus 로고
    • Driver shot during scuffle with deputy at traffic stop
    • Aug. 17, ("A Hillsborough County deputy shot a man twice after a routine traffic stop turned into a roadside scuffle.")
    • See Driver Shot During Scuffle With Deputy At Traffic Stop, ORLANDO SENTINEL, Aug. 17, 1998, at B3 ("A Hillsborough County deputy shot a man twice after a routine traffic stop turned into a roadside scuffle."); Robert Ingrassia, Drug Suspect Killed After Assaulting FW Police Officer, DALLAS MORNING NEWS, Apr. 22, 1996, at 16A (reporting that a Fort Worth police officer shot and killed a suspect, after the suspect resisted arrest during a traffic stop); David Nyhan, The King Case - No Fire This Time?, BOSTON GLOBE, Mar. 21, 1993, at 73 (writing that police beat a suspect to death after a routine traffic stop in circumstances reminiscent of the Rodney King case); Sharon Tubbs & Thomas C. Tobin, Disturbance Resonates Throughout Bay Area, ST. PETERSBURG TIMES, Nov. 18, 1996, at 1A (noting that an incident that began as a routine traffic stop ended with a police officer shooting and killing a suspect).
    • (1998) Orlando Sentinel
  • 153
    • 25744440058 scopus 로고    scopus 로고
    • Drug suspect killed after assaulting fw police officer
    • Apr. 22, reporting that a Fort Worth police officer shot and killed a suspect, after the suspect resisted arrest during a traffic stop
    • See Driver Shot During Scuffle With Deputy At Traffic Stop, ORLANDO SENTINEL, Aug. 17, 1998, at B3 ("A Hillsborough County deputy shot a man twice after a routine traffic stop turned into a roadside scuffle."); Robert Ingrassia, Drug Suspect Killed After Assaulting FW Police Officer, DALLAS MORNING NEWS, Apr. 22, 1996, at 16A (reporting that a Fort Worth police officer shot and killed a suspect, after the suspect resisted arrest during a traffic stop); David Nyhan, The King Case - No Fire This Time?, BOSTON GLOBE, Mar. 21, 1993, at 73 (writing that police beat a suspect to death after a routine traffic stop in circumstances reminiscent of the Rodney King case); Sharon Tubbs & Thomas C. Tobin, Disturbance Resonates Throughout Bay Area, ST. PETERSBURG TIMES, Nov. 18, 1996, at 1A (noting that an incident that began as a routine traffic stop ended with a police officer shooting and killing a suspect).
    • (1996) Dallas Morning News
    • Ingrassia, R.1
  • 154
    • 0346544929 scopus 로고
    • The King case - No fire this time?
    • Mar. 21, (writing that police beat a suspect to death after a routine traffic stop in circumstances reminiscent of the Rodney King case)
    • See Driver Shot During Scuffle With Deputy At Traffic Stop, ORLANDO SENTINEL, Aug. 17, 1998, at B3 ("A Hillsborough County deputy shot a man twice after a routine traffic stop turned into a roadside scuffle."); Robert Ingrassia, Drug Suspect Killed After Assaulting FW Police Officer, DALLAS MORNING NEWS, Apr. 22, 1996, at 16A (reporting that a Fort Worth police officer shot and killed a suspect, after the suspect resisted arrest during a traffic stop); David Nyhan, The King Case - No Fire This Time?, BOSTON GLOBE, Mar. 21, 1993, at 73 (writing that police beat a suspect to death after a routine traffic stop in circumstances reminiscent of the Rodney King case); Sharon Tubbs & Thomas C. Tobin, Disturbance Resonates Throughout Bay Area, ST. PETERSBURG TIMES, Nov. 18, 1996, at 1A (noting that an incident that began as a routine traffic stop ended with a police officer shooting and killing a suspect).
    • (1993) Boston Globe , pp. 73
    • Nyhan, D.1
  • 155
    • 25744478152 scopus 로고    scopus 로고
    • Disturbance resonates throughout bay area
    • Nov. 18, (noting that an incident that began as a routine traffic stop ended with a police officer shooting and killing a suspect)
    • See Driver Shot During Scuffle With Deputy At Traffic Stop, ORLANDO SENTINEL, Aug. 17, 1998, at B3 ("A Hillsborough County deputy shot a man twice after a routine traffic stop turned into a roadside scuffle."); Robert Ingrassia, Drug Suspect Killed After Assaulting FW Police Officer, DALLAS MORNING NEWS, Apr. 22, 1996, at 16A (reporting that a Fort Worth police officer shot and killed a suspect, after the suspect resisted arrest during a traffic stop); David Nyhan, The King Case - No Fire This Time?, BOSTON GLOBE, Mar. 21, 1993, at 73 (writing that police beat a suspect to death after a routine traffic stop in circumstances reminiscent of the Rodney King case); Sharon Tubbs & Thomas C. Tobin, Disturbance Resonates Throughout Bay Area, ST. PETERSBURG TIMES, Nov. 18, 1996, at 1A (noting that an incident that began as a routine traffic stop ended with a police officer shooting and killing a suspect).
    • (1996) St. Petersburg Times
    • Tubbs, S.1    Tobin, T.C.2
  • 156
    • 4243744619 scopus 로고
    • Police officers find their task increasingly perilous
    • Mar. 20, (detailing three shootings of Los Angeles area police officers during traffic stops)
    • See Miles Corwin, Police Officers Find Their Task Increasingly Perilous, L.A. TIMES, Mar. 20, 1993, at 1 (detailing three shootings of Los Angeles area police officers during traffic stops); Jeffrey Good, New Police Graduates Get Some Sobering Advice, ST. PETERSBURG TIMES, Aug. 27, 1988, at 1 (describing the shooting of two officers during routine traffic stops, with one shooting resulting in the officer's death); Larry Lebowitz, Trooper Assaulted in Keys Traffic Stop, SUN SENTINEL (Fort Lauderdale), Dec. 22, 1997, at 3B (reporting that an officer was injured when he was assaulted during a routine traffic stop); Karen Merk, Paving Respects To Fallen Colleagues: State Police Remember Those Killed In Line Of Duty, COURIER-JOURNAL (Louisville), May 20, 1999, at 1B (reporting that one officer was shot and killed during a traffic stop, while two other officers were hit and killed by tractor-trailers during two different traffic stops).
    • (1993) L.A. Times , pp. 1
    • Corwin, M.1
  • 157
    • 0346544908 scopus 로고
    • New police graduates get some sobering advice
    • Aug. 27, (describing the shooting of two officers during routine traffic stops, with one shooting resulting in the officer's death)
    • See Miles Corwin, Police Officers Find Their Task Increasingly Perilous, L.A. TIMES, Mar. 20, 1993, at 1 (detailing three shootings of Los Angeles area police officers during traffic stops); Jeffrey Good, New Police Graduates Get Some Sobering Advice, ST. PETERSBURG TIMES, Aug. 27, 1988, at 1 (describing the shooting of two officers during routine traffic stops, with one shooting resulting in the officer's death); Larry Lebowitz, Trooper Assaulted in Keys Traffic Stop, SUN SENTINEL (Fort Lauderdale), Dec. 22, 1997, at 3B (reporting that an officer was injured when he was assaulted during a routine traffic stop); Karen Merk, Paving Respects To Fallen Colleagues: State Police Remember Those Killed In Line Of Duty, COURIER-JOURNAL (Louisville), May 20, 1999, at 1B (reporting that one officer was shot and killed during a traffic stop, while two other officers were hit and killed by tractor-trailers during two different traffic stops).
    • (1988) St. Petersburg Times , pp. 1
    • Good, J.1
  • 158
    • 25744443719 scopus 로고    scopus 로고
    • Trooper assaulted in keys traffic stop
    • Dec. 22, (reporting that an officer was injured when he was assaulted during a routine traffic stop)
    • See Miles Corwin, Police Officers Find Their Task Increasingly Perilous, L.A. TIMES, Mar. 20, 1993, at 1 (detailing three shootings of Los Angeles area police officers during traffic stops); Jeffrey Good, New Police Graduates Get Some Sobering Advice, ST. PETERSBURG TIMES, Aug. 27, 1988, at 1 (describing the shooting of two officers during routine traffic stops, with one shooting resulting in the officer's death); Larry Lebowitz, Trooper Assaulted in Keys Traffic Stop, SUN SENTINEL (Fort Lauderdale), Dec. 22, 1997, at 3B (reporting that an officer was injured when he was assaulted during a routine traffic stop); Karen Merk, Paving Respects To Fallen Colleagues: State Police Remember Those Killed In Line Of Duty, COURIER-JOURNAL (Louisville), May 20, 1999, at 1B (reporting that one officer was shot and killed during a traffic stop, while two other officers were hit and killed by tractor-trailers during two different traffic stops).
    • (1997) Sun Sentinel (Fort Lauderdale)
    • Lebowitz, L.1
  • 159
    • 25744435897 scopus 로고    scopus 로고
    • Paving respects to fallen colleagues: State police remember those killed in line of duty
    • May 20, (reporting that one officer was shot and killed during a traffic stop, while two other officers were hit and killed by tractor-trailers during two different traffic stops)
    • See Miles Corwin, Police Officers Find Their Task Increasingly Perilous, L.A. TIMES, Mar. 20, 1993, at 1 (detailing three shootings of Los Angeles area police officers during traffic stops); Jeffrey Good, New Police Graduates Get Some Sobering Advice, ST. PETERSBURG TIMES, Aug. 27, 1988, at 1 (describing the shooting of two officers during routine traffic stops, with one shooting resulting in the officer's death); Larry Lebowitz, Trooper Assaulted in Keys Traffic Stop, SUN SENTINEL (Fort Lauderdale), Dec. 22, 1997, at 3B (reporting that an officer was injured when he was assaulted during a routine traffic stop); Karen Merk, Paving Respects To Fallen Colleagues: State Police Remember Those Killed In Line Of Duty, COURIER-JOURNAL (Louisville), May 20, 1999, at 1B (reporting that one officer was shot and killed during a traffic stop, while two other officers were hit and killed by tractor-trailers during two different traffic stops).
    • (1999) Courier-Journal (Louisville)
    • Merk, K.1
  • 160
    • 0346544959 scopus 로고
    • Fleeing driver shot to death: Chase takes cops through five towns
    • Dec. 11, (writing that a suspect was shot and killed, and a police officer was injured after a high-speed chase triggered by a traffic stop)
    • See Jim Kirksey, Fleeing Driver Shot To Death: Chase Takes Cops Through Five Towns, DENVER POST, Dec. 11, 1995, at BOl (writing that a suspect was shot and killed, and a police officer was injured after a high-speed chase triggered by a traffic stop); Jeff Mosier, Garland Police Officer, Driver Killed During Traffic Stop, DALLAS MORNING NEWS, Sept. 22, 1998, at 10A ("A police motorcycle officer and a motorist who was pulled over during a traffic stop were killed Monday when a van slammed into their vehicles . . . ."); David Smollar, Officer Shot As Auto Stop Turns Violent, L.A. TIMES, Dec. 27, 1987, at 1 (describing altercations at two traffic stops in the San Diego area, where either a police officer, a suspect or both parties were injured).
    • (1995) Denver Post
    • Kirksey, J.1
  • 161
    • 25744475932 scopus 로고    scopus 로고
    • Garland police officer, driver killed during traffic stop
    • Sept. 22, ("A police motorcycle officer and a motorist who was pulled over during a traffic stop were killed Monday when a van slammed into their vehicles . . . .")
    • See Jim Kirksey, Fleeing Driver Shot To Death: Chase Takes Cops Through Five Towns, DENVER POST, Dec. 11, 1995, at BOl (writing that a suspect was shot and killed, and a police officer was injured after a high-speed chase triggered by a traffic stop); Jeff Mosier, Garland Police Officer, Driver Killed During Traffic Stop, DALLAS MORNING NEWS, Sept. 22, 1998, at 10A ("A police
    • (1998) Dallas Morning News
    • Mosier, J.1
  • 162
    • 0345913805 scopus 로고
    • Officer shot as auto stop turns violent
    • Dec. 27, (describing altercations at two traffic stops in the San Diego area, where either a police officer, a suspect or both parties were injured)
    • See Jim Kirksey, Fleeing Driver Shot To Death: Chase Takes Cops Through Five Towns, DENVER POST, Dec. 11, 1995, at BOl (writing that a suspect was shot and killed, and a police officer was injured after a high-speed chase triggered by a traffic stop); Jeff Mosier, Garland Police Officer, Driver Killed During Traffic Stop, DALLAS MORNING NEWS, Sept. 22, 1998, at 10A ("A police motorcycle officer and a motorist who was pulled over during a traffic stop were killed Monday when a van slammed into their vehicles . . . ."); David Smollar, Officer Shot As Auto Stop Turns Violent, L.A. TIMES, Dec. 27, 1987, at 1 (describing altercations at two traffic stops in the San Diego area, where either a police officer, a suspect or both parties were injured).
    • (1987) L.A. Times , pp. 1
    • Smollar, D.1
  • 163
    • 0346544970 scopus 로고    scopus 로고
    • See supra text accompanying notes 8-30
    • See supra text accompanying notes 8-30.
  • 164
    • 0346544969 scopus 로고    scopus 로고
    • Carroll v. United States, 267 U.S. 132, 153 (1925)
    • Carroll v. United States, 267 U.S. 132, 153 (1925).
  • 165
    • 0347805205 scopus 로고    scopus 로고
    • note
    • The Supreme Court consistently has ruled that police may conduct a warrantless search where exigent circumstances prevent police officers from obtaining a warrant. See, e.g., Minnesota v. Olson, 495 U.S. 91, 100-01 (1990) (finding no exigent circumstances, where the defendant was not considered dangerous and could not escape from a residence); Warden v. Hayden, 387 U.S. 294, 298-300 (1967) (finding exigent circumstances when officers pursued an armed robbery suspect to his home).
  • 166
    • 0346544931 scopus 로고    scopus 로고
    • In other contexts, the Court has recognized that searches proceeding under an exception to the warrant requirement should not be any broader than necessary. See, e.g., Chimel v. California, 395 U.S. 752 (1969). The Chimmel Court held that under the search incident to arrest exception, police could conduct a warrantless search only of the area within a suspect's immediate control where the suspect "might gain possession of a weapon or destructible evidence." Id. at 763. The exception did not authorize a warrantless search of a suspect's entire house.
    • In other contexts, the Court has recognized that searches proceeding under an exception to the warrant requirement should not be any broader than necessary. See, e.g., Chimel v. California, 395 U.S. 752 (1969). The Chimmel Court held that under the search incident to arrest exception, police could conduct a warrantless search only of the area within a suspect's immediate control where the suspect "might gain possession of a weapon or destructible evidence." Id. at 763. The exception did not authorize a warrantless search of a suspect's entire house. See id. But cf. Warden, 387 U.S. at 298-300 (permitting police to seize clothing, which officers discovered during a warrantless search of a house that a fleeing felon had entered).
  • 167
    • 0347175227 scopus 로고    scopus 로고
    • U.S. (permitting police to seize clothing, which officers discovered during a warrantless search of a house that a fleeing felon had entered)
    • In other contexts, the Court has recognized that searches proceeding under an exception to the warrant requirement should not be any broader than necessary. See, e.g., Chimel v. California, 395 U.S. 752 (1969). The Chimmel Court held that under the search incident to arrest exception, police could conduct a warrantless search only of the area within a suspect's immediate control where the suspect "might gain possession of a weapon or destructible evidence." Id. at 763. The exception did not authorize a warrantless search of a suspect's entire house. See id. But cf. Warden, 387 U.S. at 298-300 (permitting police to seize clothing, which officers discovered during a warrantless search of a house that a fleeing felon had entered).
    • Warden , vol.387 , pp. 298-300
  • 168
    • 0345913844 scopus 로고    scopus 로고
    • 403 U.S. 443 (1971 ) (plurality opinion)
    • 403 U.S. 443 (1971 ) (plurality opinion).
  • 169
    • 0347805206 scopus 로고    scopus 로고
    • See id. at 447-48
    • See id. at 447-48.
  • 170
    • 0346544971 scopus 로고    scopus 로고
    • note
    • See id. at 449-53 (concluding that the warrant was not issued by a neutral magistrate, but improperly was issued by the chief investigator and prosecutor in the case).
  • 171
    • 0346544974 scopus 로고    scopus 로고
    • note
    • See id. at 458 (explaining the state's argument that "the police may make a warrantless search of an automobile whenever they have probable cause to do so").
  • 172
    • 0345913843 scopus 로고    scopus 로고
    • See id. at 459-60 (quoting Chambers v. Maroney, 399 U.S. 42, 51 (1970))
    • See id. at 459-60 (quoting Chambers v. Maroney, 399 U.S. 42, 51 (1970)).
  • 173
    • 0345913845 scopus 로고    scopus 로고
    • Id. at 462
    • Id. at 462.
  • 174
    • 0345913846 scopus 로고    scopus 로고
    • Id
    • Id.
  • 175
    • 0346544973 scopus 로고    scopus 로고
    • note
    • See id. at 473 ("The seizure was therefore unconstitutional, and so was the subsequent search at the station house.").
  • 176
    • 0347175234 scopus 로고    scopus 로고
    • note
    • See, e.g., Pennsylvania v. Labron, 518 U.S. 938. 938-39 (1996) (per curiam) (reversing lower court decisions, which incorrectly concluded that police must "obtain a warrant before searching an automobile unless exigent circumstances are present"); California v. Carney, 471 U.S. 386, 390-95 (1985) (holding that police could search a parked motor home without a warrant).
  • 177
    • 84892143644 scopus 로고    scopus 로고
    • Florida Contraband Forfeiture Act, § 932.703(1)(a) (West 1997 & Supp. 1999) (allowing police to seize any "contraband article, vessel, motor vehicle, aircraft, other personal property, or real property" used in violation of the Act)
    • See Florida Contraband Forfeiture Act, FLA. STAT. § 932.703(1)(a) (West 1997 & Supp. 1999) (allowing police to seize any "contraband article, vessel, motor vehicle, aircraft, other personal property, or real property" used in violation of the Act).
    • Fla. Stat.
  • 178
    • 0347805209 scopus 로고    scopus 로고
    • note
    • See Florida v. White, 526 U.S. 559, 570 (1999) (Stevens, J., dissenting) (arguing that the automobile exception provides "weak support for a warrantless seizure of the vehicle itself, months after the property was proverbially tainted by its physical proximity to the drug trade, and while the owner is safely in police custody").
  • 179
    • 0347175233 scopus 로고    scopus 로고
    • note
    • However, police could obtain a warrant only if they possessed probable cause to suspect that the car contained evidence of criminal activities. See U.S. CONST. amend. IV (providing that "no Warrants shall issue, but upon probable cause").
  • 180
    • 0346544967 scopus 로고    scopus 로고
    • U.S. dissenting
    • White, 526 U.S. at 573 (Stevens, J., dissenting).
    • White , vol.526 , pp. 573
    • Stevens, J.1
  • 181
    • 0346544972 scopus 로고    scopus 로고
    • Wyoming v. Houghton, 526 U.S. 295, 297 (1999)
    • Wyoming v. Houghton, 526 U.S. 295, 297 (1999).
  • 182
    • 0347805207 scopus 로고    scopus 로고
    • See supra text accompanying notes 152-59
    • See supra text accompanying notes 152-59.
  • 183
    • 0347175232 scopus 로고    scopus 로고
    • See Wyoming v. Houghton, 526 U.S. 295, 298 (1999)
    • See Wyoming v. Houghton, 526 U.S. 295, 298 (1999).
  • 184
    • 0346544930 scopus 로고
    • See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (upholding the warrantless search of two parked cars); California v. Carney, 471 U.S. 386, 390-95 (1985) (upholding the warrantless search of a parked motor home); 2d ed. (questioning the continued applicability of the warrant rule announced in Coolidge)
    • See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (upholding the warrantless search of two parked cars); California v. Carney, 471 U.S. 386, 390-95 (1985) (upholding the warrantless search of a parked motor home); see also WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 193-94 (2d ed. 1992) (questioning the continued applicability of the warrant rule announced in Coolidge).
    • (1992) Wayne R. LaFave & Jerold H. Israel, Criminal Procedure , pp. 193-194
  • 185
    • 0040701738 scopus 로고
    • Two models of the fourth amendment
    • Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1468 (1985); see also Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. CHI. L. REV. 47, 49 (1974) (describing Fourth Amendment decisions as "a body of doctrine that is unstable and unconvincing").
    • (1985) Mich. L. Rev. , vol.83 , pp. 1468
    • Bradley, C.M.1
  • 186
    • 0346011199 scopus 로고
    • Generalities of the fourth amendment
    • describing Fourth Amendment decisions as "a body of doctrine that is unstable and unconvincing"
    • Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1468 (1985); see also Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. CHI. L. REV. 47, 49 (1974) (describing Fourth Amendment decisions as "a body of doctrine that is unstable and unconvincing").
    • (1974) U. Chi. L. Rev. , vol.42 , pp. 47
    • Weinreb, L.L.1
  • 187
    • 0347805211 scopus 로고    scopus 로고
    • note
    • See, e.g., United States v. Place, 462 U.S. 696, 701 (1983) ("[T]Ke Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant."); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (stating that warrantless searches are per se unreasonable); Terry v. Ohio, 392 U.S. 1, 20 (1968) ("[P]olice must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure."); Katz v. United States, 389 U.S. 347, 357 (1967) ("[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.").
  • 188
    • 0347175231 scopus 로고    scopus 로고
    • See Bradley, supra note 169, at 1473-75 (articulating the numerous exceptions to the warrant requirement)
    • See Bradley, supra note 169, at 1473-75 (articulating the numerous exceptions to the warrant requirement).
  • 189
    • 0346544978 scopus 로고    scopus 로고
    • note
    • Id. at 1475. Following the 1985 publication of Professor Bradley's Michigan Law Review article, the Supreme Court has continued to create an ever expanding list of exceptions to the so-called warrant requirement. See, e.g., Michigan Department of State Police v. Sitz, 496 U.S. 444, 449-55 (1990) (holding that police may conduct brief stops of motorists at sobriety checkpoints, without a warrant and without probable cause); Maryland v. Buie, 494 U.S. 325, 331-37 (1990) (stating that where police arrest a suspect in his home, officers may engage in a "protective sweep" of the suspect's home without a warrant); Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 618-34 (1989) (holding that the Federal Railroad Administration could take blood, breath and urine tests of railroad workers following a major train accident, without a warrant and without probable cause); California v. Carney, 471 U.S. 386, 390-95 (1985) (concluding that police may search a motor home without a warrant).
  • 190
    • 0345913847 scopus 로고    scopus 로고
    • note
    • As is typical, the Supreme Court's two recent Fourth Amendment auto search decisions reversed rulings issued by two state supreme courts. See Florida v. White, 526 U.S. 559, 566 (1999) (reversing the Florida Supreme Court); Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (reversing the Wyoming Supreme Court). Despite having the benefit of extended deliberations, appellate briefs, oral arguments and law clerk research, the state supreme court justices in White and Houghton still reached the wrong result. If state supreme court justices can't understand Fourth Amendment law, one must doubt whether the coiTect result will be reached by a typical police officer forced to make a split-second decision. See Bradley, supra note 169, at 1468 ("In the seventeen cases decided in the last two years, the Supreme Court has never reached the same result as all lower courts and has usually reversed the highest court below, rendering a total of sixty-one separate opinions in the process.").
  • 191
    • 0347805212 scopus 로고    scopus 로고
    • Bradley, supra note 169, at 1475
    • Bradley, supra note 169, at 1475.
  • 192
    • 0345913848 scopus 로고    scopus 로고
    • Id. at 1492
    • Id. at 1492.
  • 193
    • 0347805210 scopus 로고    scopus 로고
    • See supra text accompanying notes 109-27
    • See supra text accompanying notes 109-27.
  • 194
    • 0347175237 scopus 로고    scopus 로고
    • note
    • See, e.g., United States v. Ross, 456 U.S. 798, 825 (1982) (asserting that warrantless searches are per se unreasonable, subject to a few exceptions); Katz v. United States, 389 U.S. 347, 357 (1967) (same).
  • 195
    • 0346544975 scopus 로고    scopus 로고
    • See supra text accompanying notes 8-108
    • See supra text accompanying notes 8-108.
  • 196
    • 0347805208 scopus 로고    scopus 로고
    • Bradley, supra, note 169, at 1481. See also California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring in the judgment) (arguing that "the path out of this confusion should be sought by returning to the first principle that the 'reasonableness' requirement of the Fourth Amendment affords the protection that the common law afforded")
    • Bradley, supra, note 169, at 1481. See also California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring in the judgment) (arguing that "the path out of this confusion should be sought by returning to the first principle that the 'reasonableness' requirement of the Fourth Amendment affords the protection that the common law afforded").
  • 197
    • 0347805216 scopus 로고    scopus 로고
    • U.S. (Scalia, J., concurring in the judgment) (asserting that the warrant requirement has "become so riddled with exceptions" that it is "basically unrecognizable")
    • See Acevedo, 500 U.S. at 582 (Scalia, J., concurring in the judgment) (asserting that the warrant requirement has "become so riddled with exceptions" that it is "basically unrecognizable").
    • Acevedo , vol.500 , pp. 582
  • 198
    • 0346544976 scopus 로고    scopus 로고
    • See Bradley, supra note 169, at 1491 ("Such traditionally important factors as whether the police have a warrant, whether there is probable cause, and whether a home is being searched must weigh most heavily in the calculus.")
    • See Bradley, supra note 169, at 1491 ("Such traditionally important factors as whether the police have a warrant, whether there is probable cause, and whether a home is being searched must weigh most heavily in the calculus.").
  • 199
    • 0345913842 scopus 로고    scopus 로고
    • U.S. (Scalia, J., concurring in the judgment) ("The Fourth Amendment does not by its terms require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are 'unreasonable.'"); Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting) ("It is often forgotten that nothing in the Fourth Amendment itself requires that searches be conducted pursuant to warrants.")
    • See Acevedo, 500 U.S. at 581 (Scalia, J., concurring in the judgment) ("The Fourth Amendment does not by its terms require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are 'unreasonable.'"); Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting) ("It is often forgotten that nothing in the Fourth Amendment itself requires that searches be conducted pursuant to warrants.").
    • Acevedo , vol.500 , pp. 581
  • 200
    • 0347175240 scopus 로고    scopus 로고
    • U.S. CONST. amend. IV
    • U.S. CONST. amend. IV.
  • 201
    • 0347175230 scopus 로고
    • According to Professor Taylor, the Framers did not view the warrant "as a protection against unreasonable searches," but instead regarded the warrant "as an authority for unreasonable and oppressive searches." Id. at 23. In short. Professor Taylor reads the Fourth Amendment as intended to restrict the use of warrants rather than to require that police must obtain a warrant. Id. And with "[e]xhaltation of the warrant as the touchstone of 'reasonableness,'" Professor Taylor believes that justices and commentators "have stood the fourth amendment on its head." Id. at 23-24
    • See TELFORD TAYLOR, Two STUDIES IN CONSTITUTIONAL INTERPRETATION 41 (1969). According to Professor Taylor, the Framers did not view the warrant "as a protection against unreasonable searches," but instead regarded the warrant "as an authority for unreasonable and oppressive searches." Id. at 23. In short. Professor Taylor reads the Fourth Amendment as intended to restrict the use of warrants rather than to require that police must obtain a warrant. Id. And with "[e]xhaltation of the warrant as the touchstone of 'reasonableness,'" Professor Taylor believes that justices and commentators "have stood the fourth amendment on its head." Id. at 23-24.
    • (1969) Telford Taylor, Two Studies in Constitutional Interpretation , pp. 41
  • 202
    • 0347175223 scopus 로고    scopus 로고
    • See Bradley, supra note 169, at 1481 ("[E]ach case must be evaluated on its own facts, recognizing that, because no two cases will have completely identical facts, prior decisions may only be indicative but not dispositive of future cases.")
    • See Bradley, supra note 169, at 1481 ("[E]ach case must be evaluated on its own facts, recognizing that, because no two cases will have completely identical facts, prior decisions may only be indicative but not dispositive of future cases.").
  • 203
    • 0347175238 scopus 로고    scopus 로고
    • note
    • See id. at 1482 (describing categorical balancing in Fourth Amendment cases as "an exercise fraught with obvious peril").
  • 204
    • 0346544980 scopus 로고    scopus 로고
    • note
    • Cf. United States v. Robinson, 414 U.S. 218, 227-37 (1973) (holding that during a search incident to an arrest of an auto driver, an officer may conduct a thorough search of the driver's person).
  • 205
    • 0346544977 scopus 로고    scopus 로고
    • endorsed this approach. See Chambers v. Maroney, 399 U.S. 42, 63 (1970) (Harlan, J., concurring and dissenting) (advocating the "simple seizure of the car for the period - perhaps a day - necessary to enable the officers to obtain a search warrant")
    • Justice Harlan endorsed this approach. See Chambers v. Maroney, 399 U.S. 42, 63 (1970) (Harlan, J., concurring and dissenting) (advocating the "simple seizure of the car for the period - perhaps a day - necessary to enable the officers to obtain a search warrant").
    • Harlan, J.1
  • 206
    • 0347805214 scopus 로고    scopus 로고
    • See supra text accompanying notes 65-73
    • See supra text accompanying notes 65-73.
  • 207
    • 0346544979 scopus 로고    scopus 로고
    • See supra text accompanying notes 74-81
    • See supra text accompanying notes 74-81.
  • 208
    • 0347805217 scopus 로고    scopus 로고
    • See supra text accompanying notes 31-62
    • See supra text accompanying notes 31-62.
  • 209
    • 0345913850 scopus 로고    scopus 로고
    • note
    • The Court developed these exceptions as part of a regime that presumptively required a warrant. If the Court were to abandon the purported warrant requirement, many of the exceptions might no longer make sense.
  • 210
    • 0345913852 scopus 로고    scopus 로고
    • note
    • See South Dakota v. Opperman, 428 U.S. 364, 394 (1976) (Marshall, J., dissenting) (asserting that the Court should proscribe any warrantless inventory search of an auto, unless police have made "reasonable efforts" to identify and contact a car owner prior to the search).
  • 211
    • 0347805178 scopus 로고
    • Making sense of sense-enhanced searches
    • "[P]olice must have an independent basis for searching any particular person, and cannot search an individual simply because they find him in the company of others independently suspected of wrong-doing."
    • See, e.g., Ybarra v. Illinois, 444 U.S. 85, 90-96 (1979) (holding that police could not search patrons at a bar, based on a warrant that authorized a search of a bartender for heroin); see also David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 MINN. L. REV. 563, 578 (1990) ("[P]olice must have an independent basis for searching any particular person, and cannot search an individual simply because they find him in the company of others independently suspected of wrong-doing.").
    • (1990) Minn. L. Rev. , vol.74 , pp. 563
    • Steinberg, D.E.1


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