Divining and designing the future of the search incident to arrest doctrine: Avoiding instability, irrationality, and infidelity

University of Illinois Law Review

Volumn 2007, Issue 5, 2007, Pages 1417-1475

  Tomkovicz, James J ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 36049025852     PISSN: 02769948     EISSN: None     Source Type: Journal    
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References (161)

1. United States v. Rabinowitz, 339 U.S. 56,69 (1950) (Frankfurter, J., dissenting).
2. U.S. CONST, amend. IV.
3. The Rabinowitz case will play a prominent role in the discussions that follow. The majority opinion was a major development in the history of search incident doctrine. See infra text accompanying notes 52-64. Although it was subsequently overruled, it is the source of, and foundation for, the recent proposal to modify search incident to arrest law that is the impetus for this article. See infra text accompanying notes 193-208.
4. In light of the Supreme Court's generous interpretation of law enforcement authority under the Fourth Amendment, today the search incident to arrest doctrine may be triggered by criminal acts for which this description is not particularly apt. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (upholding constitutionality of warrantless custodial arrest for failing to use seatbelt); see also United States v. Mahabir No. CR-93-22-L, 1997 WL 297498, at *5 (4th Cir. June 4,1997) (declaring unwrapping and opening of boxes in sleeper compartment of truck to be lawful search incident to arrest for drivingwith suspended license); United States v. Pino, 855 F.2d 357, 362-63 (6th Cir. 1988) (finding search incident to arrest constitutional following arrest for making illegal lane change); Daniels v. State, 416 So. 2d 760, 763-64 (Ala. Crim. App. 1982) (finding search of aspirin bottle in car valid incident to arrest for not having driver's license); State v. Reed, 157 S.W.3d 353, 357 (Mo. Ct. App. 2005) (holding valid a search incident to arrest following arrest for driving without a license).
5. In the landmark Warren Court opinion regarding the doctrine, Justice Stewart appropriately employed the pendulum metaphor to describe the mutable course of the doctrine's development. See Chimel v. California, 395 U.S. 752, 758 (1969) (observing, while documenting the several pre-Chimel changes of course, that "[ojnly a year after" the search incident to arrest doctrine had been interpreted very broadly "the pendulum swung again" in a restrictive direction). Justice White described the course of development of the search incident to arrest doctrine as a "modern Odyssey," asserting that "[f]ew areas of the law [had] been as subject to shifting constitutional standards," and that the "whole area" had been characterized by "remarkable instability." Id. at 770 (White, J., dissenting).
6. Weeks v. United States, 232 U.S. 383,398 (1914).
7. See Chimel, 395 U.S. 752. Chimel arrived just as the curtain was falling on the Warren Court's revolution in criminal procedure. It was decided on the very day that Warren Burger was sworn in as Chief Justice. This was the first in a number of fairly rapid changes in the Court's membership that would have a profound influence on the course of Fourth Amendment law. Justice Blackmun assumed Justice Fortas's seat the next year, and Justices Rehnquist and Powell replaced Justices Harlan and Black just two years after that. Thus, within the four-year period that began the year Chimel was decided, almost half the Court's membership changed.
8. 541 U.S. 615 (2004).
9. Thornton, 541 U.S. at 628 (Scalia, J., concurring in the judgment) (quoting and agreeing with United States v. McLaughlin, 170 F.3d 889,894 (9th Cir. 1999) (Trott, J., concurring)).
10. Id. at 631.
11. Id.
12. Only Justice Ginsburg signed onto his concurrence in Thornton.
13. As will become clear, my concern in this article is with the scope of the automatic authority that the doctrine grants to search areas other than the person of the arrestee. Although there are questions that can be raised about the legitimacy of the currently recognized authority to fully search the person and possessions found on the person of a lawful arrestee, I do not intend to focus on those questions or that authority.
14. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976) (affirming authority to conduct inventory searches of vehicles without warrants or probable cause); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (holding that warrantless, causeless searches are valid if officers obtain voluntary consent to search); Terry v. Ohio, 392 U.S. 1, 27 (1968) (concluding that limited searches of suspicious person for weapons are constitutional without warrants or probable cause to search).
15. See U.S. CONST, amend. IV (stating that "no warrants shall issue but upon probable cause"). Although the text of the guarantee specifies only that searches pursuant to warrants are impermissible unless the warrant is supported by a showing of probable cause to search, the Supreme Court has sensibly concluded that when there is reason to dispense with the warrant demand, probable cause is the normal showing required to render a search reasonable. See Wong Sun v. United States, 371 U.S. 471, 479-80 (1963).
16. I am an "originalist" insofar as I believe that the task of constitutional interpretation is to honor the values and objectives of the Framers-i.e., to ensure that the resolution of Fourth Amendment issues yields the level of privacy protection they intended to provide-no more and no less. I do not think it appropriate for those empowered to construe the guarantee to augment the protection afforded because they believe privacy should be more jealously safeguarded or to decrease the protection afforded because of a fear that the guarantee is too great an impediment to effective law enforcement. Cf. Harris v. United States, 331 U.S. 145, 198 (Jackson, J., dissenting) ("[T]he forefathers[, who] thought" that the shelter the Fourth Amendment provides for criminals "was not too great a price to pay for ... privacy of home, papers, and effects... may have overvalued privacy, but I am not disposed to set their command at naught.").
17. 232 U.S. 383, 392 (1914).
18. Id. (emphasis added). The only reason for the mention of this "right" was to point out that it was not at issue in Weeks-i.e., that the government was not asserting that the searches in the case could be validated on this ground.
19. Id. In support of these propositions. Justice Day cited a couple of established treatises and one Irish case.
20. 267 U.S. 132 (1925).
21. As developed today, the "automobile exception" to the search warrant rule authorizes officers to search a readily mobile vehicle and all its contents without a search warrant if there is probable cause to search. See California v. Acevedo, 500 U.S. 565, 580 (1991) (holding that all containers in vehicle where the object of the search could be located can be searched if there is probable cause to search the vehicle); California v. Carney, 471 U.S. 386, 392-93 (1985) (concluding that all readily mobile vehicles, both those stopped by officers in transit and those that are parked at the time officers approach, are subject to search without a warrant if officers have probable cause to search).
22. Carroll, 267 U.S. at 158 (emphasis added). The meaning and breadth of the phrase "in his control" was not clarified in Carroll.
23. 269 U.S. 20 (1925).
24. Id. at 30 (emphasis added). The Court did not specifically state how broadly "the place where the arrest is made" should be interpreted. It did assert, however, that "one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein."
25. Id. at 32. Although it is not entirely clear, this assertion might suggest that the scope of the search permitted was the entire dwelling where the arrest occurred.
26. 275 U.S. 192 (1927).
27. Id. at 199.
28. Id. (emphasis added).
29. Id. (emphasis added).
30. 282 U.S. 344 (1931).
31. Id. at 358.
32. Id.
33. Id.
34. 285 U.S. 452 (1932).
35. Id. at 462.
36. Id. at 465.
37. Id. at 463.
38. Id. at 465.
39. Id.
40. Id. at 464. Under the then-prevailing "mere evidence" rule, the papers the officers sought "solely for use as evidence of crime ... could not lawfully be searched for and taken even under a search warrant" that was otherwise proper and valid. Id. This limitation on search and seizure power was ultimately discarded by the Supreme Court in Warden v. Hayden. 387 U.S. 294, 300-01 (1967).
41. Lefkowitz. 285 U.S. at 467.
42. See id.
43. 331 U.S. 145 (1947).
44. Id. at 151. The Court found support for this view in Agnello, Marron, and other cases.
45. See id. at 151 nn.12 & 14. Neither Go-Bart nor Lefkowitz evoked dissent by any Justice. Harris was the first case to prompt sharp division on the Court concerning the breadth of the search incident to arrest doctrine. Four Justices expressed their contrary views at length in three separate dissents.
46. See id. at 156 (Frankfurter, J., dissenting);
47. id. at 183 (Murphy, J., dissenting);
48. id. at 195 (Jackson, J., dissenting). I explore some of the Harris dissenters' objections and themes in my analyses and critiques of the present and future of search incident law.
49. Id. at 151 n.14,152. The Go-Bart Court had narrowly interpreted Marron. The Harris majority, proving that both sides could play that game, construed Go-Bart and Lefkowitz restrictively, opining that the searches in those cases were "found to be invalid ... for reasons other than the areas covered by the searches."
50. Id. at 152 n.16.
51. Id. at 152.
52. Id.
53. Id. at 153-54. According to the majority, officers could lawfully seize not only the "instrumentalities" of crime, but the "fruits of crime ..., weapons" which might be used to escape from arrest, "and property the possession of which is a crime."
54. Id. at 154.
55. 334 U.S. 699 (1948).
56. Id. at 704 (emphasis added).
57. Id. at 708.
58. Id. at 708-10. The Court distinguished Harris as a case in which the officers did not have an opportunity to secure a search warrant in advance and a case "concerned with the permissible scope of a general search" incident to arrest.
59. Id. at 708-09. Asserting that the factual differences between Trupiano and Harris "may or may not be of significance so far as general principles are concerned," the Court was content to rest on them for the time being and to leave questions about the viability of Harris "to another day."
60. Id. at 709.
61. 339 U.S. 56 (1950). For the third search incident case in a row, only five Justices joined the majority opinion. Id. The authority granted by the doctrine had clearly become quite controversial.
62. Id. at 66.
63. Id. at 65-66.
64. Id. at 61 (quoting Agnello v. United States, 269 U.S. 20,30 (1925)) (emphasis added).
65. Id. at 62.
66. Although the Court's attitude toward search incident authority was unmistakably generous, the reasons it gave for upholding the office search were potentially limiting and certainly engendered the possibility that Rabinowitz itself could be narrowly construed. The Court noted that the officers not only had "probable cause to believe" that the arrestee was conducting an illegal business, but had "most reliable information" that the items they sought were in his possession and "concealed... in the very room where he was arrested, over which room he had immediate control and in which he had been" carrying out his illegal enterprise. Id. at 62-63. The Court explained that it was affirming the lower court's decision because the search was incident to a valid arrest, the place searched "was a business room to which the public, including the officers, was invited," "the room was small and under the immediate and complete control" of the arrestee, the officers did not search "beyond the room used for unlawful purposes," and the possession of the items seized "was a crime."
67. Id. at 64. It "seem[ed]" to the majority that the validity of so "limited" a search had "never ... been questioned seriously."
68. Id. at 63.
69. See United States v. Abel, 362 U.S. 217, 235 (1960).
70. See Chapman v. United States, 365 U.S. 610 (1961).
71. Id. at 618 (Frankfurter, J., concurring in the judgment);
72. id. at 621 (Clark, J., dissenting).
73. Preston v. United States, 376 U.S. 364,367 (1964).
74. Id.
75. Id.
76. Preston did not involve a search of the place where an arrest had occurred. At issue was the search of a vehicle long after an arrest and at a time when the men arrested were nowhere near the car but, instead, were in custody at the police station. Id. at 365-66. Thus, "the search was too remote in time or place to have been made as incidental to the arrest."
77. Id. at 368. The Court reaffirmed Preston's temporal and spatial proximity demands in Stoner v. California, 376 U.S. 483 (1964),
78. a case that involved the search of a hotel room when the occupant was not present two days prior to his arrest. Id. at 485-86. That search was declared unconstitutional because a search incident must be "substantially contemporaneous with the arrest and ... confined to the immediate vicinity of the arrest."
79. Id. at 486. Taking guidance from the principles of Stoner and Preston, in James v. Louisiana, 382 U.S. 36 (1965), the Court invalidated the search of a home after an arrest of the resident "on a street corner more than two blocks away."
80. Id. at 37. Finally, in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968), a case in which a car was stopped and the occupants were arrested, the Court relied on Preston to strike down a search of the car because it "did not take place until [the men] were in custody inside the courthouse and the car was parked on the street."
81. Id. at 220.
82. 395 U.S. 752 (1969).
83. This is hardly surprising in light of the fact that the Burger and Rehnquist Court era began the day Chimel was decided. The more than thirty-five years since the end of the Warren Court have generally been characterized by shrinkage of the scope of constitutional liberties pertaining to the criminal process and by a corresponding growth in law enforcement authority. See generally Peter Arenella, Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts' Competing Ideologies, 72 GEO. LJ. 185 (1983) (concluding that the Warren and Burger Courts followed dramatically different constitutional ideologies, with the Warren Court focusing on due process and the Burger Court emphasizing crime control);
84. Tom Stacy. The Search for the Truth in Constitutional Criminal Procedure, 91 COLUM. L. REV. 1369 (1991) (analyzing the inconsistency of the Burger and Rehnquist Courts' tendency to liberally allow admission of inculpatory evidence in the name of accuracy while restricting the admission of exculpatory evidence);
85. Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2468 (1996) (arguing that the Burger and Rehnquist Courts have "clearly become less sympathetic to claims of individual rights and more accommodating to assertions of the need for public order" by changing the consequences of finding police conduct unconstitutional).
86. Chimel, 395 U.S. at 754.
87. Id. at 760.
88. Id. at 768. The Court was unanimous about the appropriate scope of a warrantless, causeless search incident to arrest and about the overbreadth of the Rabinowitz approach. Two Justices did dissent from the conclusion that the search in Chimel was unreasonable. In their view, the existence of probable cause to search the home coupled with the exigency created by the arrest justified a warrantless search.
89. See id. at 770, 773-80 (White, J., dissenting). They did not suggest, however, that the extensive search in Chimel could have been justified in the absence of probable cause to search as a mere incident of the inhome arrest.
90. Id. at 755.
91. Id. at 755-60.
92. Id. at 760.
93. Id.
94. Id. at 760-61.
95. Id. at 761-62.
96. Id. at 763. The Court also described the area within an arrestee's immediate control as "the area into which an arrestee might reach in order to grab a weapon or evidentiary items."
97. Id.
98. Id.
99. Id. The Court pointed out that precedents like Preston v. United States, 376 U.S. 364 (1964), had already established the limiting "principle" upon which it was basing its decision in Chimel. Chimel, 395 U.S. at 763-64.
100. Chimel, 395 U.S. at 764-65.
101. Id. at 766. The Court also noted that the Rabinowitz approach allowed officers to conduct broad searches of homes without probable cause "by the simple expedient of arranging to arrest" suspects in homes and pointed out that the authority to rummage that officers could generate in this way was similar to the authority given by the general warrants resented by our forebears and forbidden by the explicit terms of the Fourth Amendment.
102. Id. at 767.
103. Id. at 768.
104. I have already noted that Justice Stewart called attention to the unsettling inconsistency of the prior decisions. Justice White was also troubled by the "shifting constitutional standards" that had governed searches incident to arrest and by the "rapid reversals" of direction in the decisions predating Chimel. Id. at 770-72 (White, J., dissenting).
105. I have always admired Justice Stewart's majority opinion in Chimel, finding it lucidly written, exceptionally logical, and quite thorough. Research for this piece has proven that the credit really belongs to another Justice who was no longer on the Court at the time Chimel was decided. All of the ingredients that make Chimel a judicial work of art, and more, are present in the masterful dissents penned by Justice Frankfurter in Harris and Rabinowitz. See United States v. Rabinowitz, 339 U.S. 56, 68-86 (1950) (Frankfurter, J., dissenting); Harris v. United States, 331 U.S. 145, 155-82 (1947) (Frankfurter, J., dissenting). Very little, if any, of the Chimel opinion is an original creation. addition, through the years I have come to question whether it makes sense to allow officers to routinely search areas into which an arrestee might reach to grab a weapon or destructible evidence areas like desk and dresser drawers, briefcases, and the pockets of clothing not worn, but resting nearby. Once an officer has searched the person of an arrestee and removed any weapons and evidentiary items, safety concerns would appear to dictate maintaining complete control over the arrestee's person. Ignoring an uncontrolled arrestee in order to open drawers and briefcases would seem risky to officers-both unwise and unreasonable. And if an officer has an arrestee under control, it is arguable that there is inadequate reason to open adjacent spaces-i.e., weapons or evidence located there do not really pose the sorts of dangers highlighted by Chimel. Of course, there may be cases in which an officer cannot effectively control an arrestee or multiple arrestees and must leave him or them in the vicinity of closed spaces that might contain weapons or evidence. In those cases, a search of the area of immediate control would be defensible. My concern in this article, however, is not the proprietyof allowing any search beyond the person of the arrestee. Instead, my focus is on the propriety of searching areas that truly are beyond the reach of arrestees, searches that clearly cannot be justified by the rationales identified in Chimel.
106. 414 U.S. 218 (1973).
107. Id. at 227-29 (referring to United States v. Robinson, 471 F.2d 1082,1093 (D.C. Cir. 1972)).
108. Robinson, 471 F.2d at 1094. In Robinson, the offenses that were the basis for arrest were traffic violations-operating a motor vehicle after license revocation and obtaining a permit by misrepresentation. Robinson, 414 U.S. at 220. The Court of Appeals believed "that there could be no evidence or fruits in the case of" these offenses. Id. at 233.
109. Robinson, 471 F.2d at 1093-94.
110. Id. at 1094-1101.
111. Id.
112. Robinson, 414 U.S. at 235-36. A lawful arrest, of course, is a necessary predicate for a legitimate search incident to arrest. See id. at 224. For an arrest to be lawful, officers must have probable cause to arrest the particular individual. See Whiteley v. Warden, 401 U.S. 560, 565-66 (1971). For misdemeanors not committed in an officer's presence, an arrest warrant may be required. See generally Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (holding that a warrant is not needed for a minor offense committed in an officer's presence, but not deciding whether a warrant is required for such offenses not committed in an officer's presence).
113. Robinson, 414 U.S. at 224.
114. Id. at 226.
115. Id.
116. Id. at 230, 232.
117. Id. at 234.
118. Id. at 234-35 & n.5.
119. Id. at 235.
120. Id.
121. Id. 100.
122. Id.
123. Id.
124. Robinson was a case in which police regulations required the officer to take the offender into custody for the offense at issue and also prescribed that a full search of the person be conducted when an arrest is made. See id. at 221 n.2. In Gustafson v. Florida, 414 U.S. 260 (1973), a companion case to Robinson, the Court concluded that the automatic authority to conduct full searches of the persons of arrestees was triggered by arrest even though the officer making the arrest had discretion to effect a custodial arrest for the offense and even though the officer had discretion to decide whether to conduct a search.
125. Id. at 263, 265.
126. 453 U.S. 454 (1981).
127. Id. at 455-56.
128. Id. at 456.
129. Id. at 457-58.
130. Id. at 459.
131. Id. at 460.
132. Id. at 458-60. The Court observed that Robinson's holding that every arrest justifies a full search of the person of the arrestee without inquiry into the presence of Chimel's justifications in individual cases was based on this premise.
133. Id. at 459.
134. Id. at 460.
135. Id. at 460-61.
136. Id. at 460 n.3.
137. Id. at 460. The Belton Court made no attempt to define the terms "recent occupant." In fact, the Court still has not specified definitively the temporal or spatial boundaries of this significant category. See infra notes 175-77 and accompanying text. Although the Court observed that Belton had been an occupant "just before he was arrested," it is not clear that this phrase was intended to impose a specific. strict temporal limitation on the class of occupants who could qualify as "recent." Belton, 453 U.S. at 462 (emphasis added).
138. The Court did not clearly authorize the search of locked containers, stating only that containers - such as purses, satchels, luggage, shopping bags, pockets of clothing, and the like-may be searched "whether ... open or closed." Belton, 453 U.S. at 461. In addition, for some vehicles-motor homes, vans, hatchbacks, and sport utility vehicles, for example-the definition of what constitutes a "passenger compartment" is not beyond dispute. On the one hand, it is arguable that the entire inside of the vehicle is the passenger compartment. See, e.g., United States v. Doward, 41 F.3d 789 (1st Cir. 1994) (holding that the hatch area of a vehicle is generally accessible from the passenger compartment); United States v. Hatfield, 815 F.2d 1068 (6th Cir. 1987) (leaving open the question of whether the entire interior of a van is subject to search); State v. Dexter, 596 So. 2d 88 (Fla. Dist. Ct. App. 1992) (holding that a hatchback area that could be reached from inside a car was "part of the passenger compartment"). On the other hand, it is arguable that some spaces inside these vehicles are not within the generalization of Belton and should be treated like trunks, beyond the scope of a proper search incident to an arrest of an occupant. See, e.g., Sellman v. State, 828 A.2d 803 (Md. Ct. Spec. App. 2003) (observing that whether the hatchback area of a vehicle is part of the passenger compartment is not an "abstract" question but, instead, depends on whether it is, in fact, accessible to occupants); State v. Savva, 616 A.2d 774 (Vt. 1991) (concluding that the rationale of Belton was irrelevant to the search of a bag found in a hatchback because the trial court made a factual finding that the hatchback was not part of the vehicle's passenger compartment).
139. Belton, 453 U.S. at 460.
140. Id.
141. The Court's acknowledgment that all areas are not "inevitably" within the reach of an occupant was a concession that there will be some invasions of the privacy of spaces that pose no safety or evidence-loss dangers. Such an invasion of privacy is "unjustified" in the sense that the government interests that are said to support searches incident to arrest are not, in fact, implicated. In the Belton majority's view, however, the law enforcement interests furthered by a "workable" bright-line rule do "justify" the privacy invasions that extend beyond the actual reach of Chimel's twin rationales. Id. at 458-60.
142. It is arguable that many areas within a passenger compartment are inaccessible to many occupants and, therefore, that the magnitude of the unjustified infringements upon Fourth Amendment interests is much larger than the majority thought. In addition, one might plausibly contend that gains in terms of needed clarity are not as substantial as the Court believed and, in any event, are insufficient to counterbalance the actual costs to privacy from a rule that authorizes full searches of every vehicle and the containers inside. The Belton dissenters' positions were, in part, rooted in such disagreements with the majority's assumptions. See id. at 466-71 (Brennan, J., dissenting) (arguing that by creating a bright-line rule, "the Court ignores both precedent and principle and fails to achieve its objective of providing police officers with a more workable standard for determining the permissible scope of searches incident to arrest");
143. id. at 472 (White, J., dissenting) (describing the automatic authority to search all containers in a vehicle incident to arrest as "an extreme extension of Chimel"). Nonetheless, the premises underlying the majority's fiction regarding the reach of an arrestee who is inside a vehicle are far from implausible and the balance of interests struck by the majority seems rationally defensible. For that reason, I have characterized this aspect of Belton's bright-line holding as a relatively modest threat to Chimel's constraining principle.
144. Id. at 469 (Brennan, J., dissenting).
145. There is little doubt that officers possess the authority granted by Belton both when an occupant is arrested inside a car, then moved outside the passenger compartment prior to the search and when an occupant is moved out of the car, then arrested prior to the search of the passenger compartment. In both cases, the search is ostensibly inconsistent with the guiding principle of Chimel because at the time the search is conducted there is no risk that the arrestee could gain access to a weapon or evidentiary item located in the area searched. From Chimel's perspective, the fact that the arrest occurred when the occupant was inside the passenger compartment seems irrelevant if the arrestee no longer has access to that area at the time officers conduct their search.
146. The concept of "lunging distance" has played a role in lower courts' efforts to define the boundaries of the authority granted by Chimel. See, e.g., People v. Hufnagel, 745 P.2d 242, 247-48 (Colo. 1987) (defining the area within an arrestee's immediate control as his lunging distance, even when the arrestee is handcuffed); People v. Clouse, 859 P.2d 228, 234-35 (Colo. Q. App. 1992) (holding that a search underneath a bed on which an arrestee was sitting was a proper search incident to arrest because the area was within the arrestee's lunging distance); State v. Braceo, 517 P.2d 335, 337 (Or. Ct. App. 1973) (holding that police could validly search an attaché case incident to arrest because the arrestee was within lunging distance of the case).
147. See Thornton v. United States, 541 U.S. 615,627 (2004) (Scalia, J., concurring in the judgment).
148. See Belton, 453 U.S. at 460.
149. Id. at 461.
150. Id. (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)).
151. 455 U.S. 1 (1982).
152. Id. at 6.
153. Id. at 7.
154. Id. Dissenting Justices did not agree that interests in keeping track of, and maintaining control over, an arrestee justify a "per se rule" allowing the entry of a home to monitor an arrestee's movements.
155. Id. at 14 (White, J., dissenting). In their view, "the Court should move with [more] care where the home or living quarters are involved."
156. Id. at 15. They advocated a case-by-case approach. Instead of permitting officers to enter a dwelling in every case, the dissenters would have limited monitoring authority to situations in which there is a particularized showing of necessity.
157. Id. at 14-15.
158. 494 U.S. 325 (1990).
159. Id. at 330.
160. Id. at 336.
161. Id. at 335.