Supreme Court Limits Warrantless Car Searches

Supreme Court Limits Warrantless Car Searches

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Changing a long-standing rule, the justices ruled that police cannot routinely search a suspect's car after an arrest. (The Washington Post)


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Changing a long-standing rule, the justices ruled that police cannot routinely search a suspect's car after an arrest. (The Washington Post)



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By Robert Barnes


Washington Post Staff Writer

Wednesday, April 22, 2009



The Supreme Court yesterday sharply limited the power of police to search a suspect's car after making an arrest, acknowledging that the decision changes a rule that law enforcement has relied on for nearly 30 years.



In a decision written by Justice John Paul Stevens, an unusual five-member majority said police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence, or when it is "reasonable to believe" there is evidence in the car supporting the crime at hand.



The justices noted that law enforcement for years has interpreted the court's rulings on warrantless car searches to mean that officers may search the passenger compartment of a vehicle as part of a lawful arrest of a suspect. But Stevens said that was a misreading of the court's decision in New York v. Belton in 1981.



"Blind adherence to Belton's faulty assumption would authorize myriad unconstitutional searches," Stevens said, adding that the court's tradition of honoring past decisions did not bind it to continue such a view of the law. "The doctrine of stare decisis does not require us to approve routine constitutional violations."



Stevens was joined by two of his most liberal colleagues -- Justices David H. Souter and Ruth Bader Ginsburg -- and two of his most conservative -- Justices Antonin Scalia and Clarence Thomas.



The decision overturned a three-year prison sentence for Arizonan Rodney Gant, who had been convicted of cocaine possession. Police found the drug in a search of his car after his arrest for driving with a suspended license. Gant had walked away from his car when he was arrested, and he sat handcuffed a distance away while police searched his vehicle.



"Police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein," Stevens wrote.



Justice Samuel A. Alito Jr., writing for the four dissenters, said the court's insistence that its precedents had been misinterpreted was simply a cover for getting rid of a decision with which it disagreed.



He said the replacement of what had been an easy-to-understand "bright line" rule for police "is virtually certain to confuse law enforcement officers and judges for some time to come."



The court's new rules will endanger arresting officers, he said, and "cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law."



He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Stephen G. Breyer.



The case is Arizona v. Gant.

Well, good.

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Stevens was joined by two of his most liberal colleagues -- Justices David H. Souter and Ruth Bader Ginsburg -- and two of his most conservative -- Justices Antonin Scalia and Clarence Thomas.

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No Bush appointees. Well, of Bush fils. This majority is good to see, as one should see justices from both ends of the judicial spectrum joining together for such an opinion.

Is this a good thing?

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Originally Posted by DarrinS

Is this a good thing?

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Is personal liberty? Constitutional rights? The state is not the Constitution.

I'm thinking it's not a good thing.

Woohoo! Way to go Supreme Court.

I expect conservatives to decry this, even though this should be something they are in favor of. (Decreases the chance of government poking in where it shouldn't, increases personal liberty.)

Edit: Mainly because conservatives hate big government, unless it leads to a perceived or actual increase in the powers of "law and order", in which they're big fans of it.

I can live with it.

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Originally Posted by LnGrrrR

Edit: Mainly because conservatives hate big government, unless it leads to a perceived or actual increase in the powers of "law and order", in which they're big fans of it.

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True. Same for military action and expenditure. Though that train of thought did originate as a defense of those institutions. It's reflexive these days and unfortunately many on the right seem to have lost the natural skepticism one would expect them to demonstrate at the expansion of police power or the military.

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Originally Posted by LnGrrrR

I expect conservatives to decry this, even though this should be something they are in favor of. (Decreases the chance of government poking in where it shouldn't, increases personal liberty.)

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I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.

So we lose our constitutional rights when there's a subsidy? (There's a bit of old truth there about why a small, limited government is preferable).

I think it's a great decision. The liberty infringement of searches incident to arrest have always struck me as a bizarre exception to the warrant requirement. While they might provide a means to find additional evidence to support the basis for the arrest and the ultimate charge to be levied upon the defendant, they also allow an intrusive search that might reveal other crimes without the predicate of probable cause to support those searches.

An arrest -- and certainly an arrest without a conviction -- shouldn't completely eviscerate the liberties against warrantless searches that the Constitution ensures.

Say a cop pulls someone over and there's a strong smell of marijuana coming from the vehicle, the driver has a powdery residue on his nose, and the back seat is stacked with car stereo equipment. The cop has to wait for a judge to issue a warrant before searching the vehicle? Am I misinterpreting this?

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Originally Posted by Blake

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

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So any time you're driving down a public road, it would be acceptable for a police officer to stop you and search your vehicle?

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Originally Posted by DarrinS

Say a cop pulls someone over and there's a strong smell of marijuana coming from the vehicle, the driver has a powdery residue on his nose, and the back seat is stacked with car stereo equipment. The cop has to wait for a judge to issue a warrant before searching the vehicle? Am I misinterpreting this?

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Yes, you are.

In your hypothetical, there would be probable cause to search for drugs at least. That would have nothing to do with the arrest, though.

In Gant's situation, he was arrested for driving with a suspended license and there was, apparently, no probable cause to think he had committed any other crime. The Court's holding says that arrest alone doesn't furnish probable cause and that arrest alone is insufficient to permit a warrantless search.

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Originally Posted by FromWayDowntown

Yes, you are.

In your hypothetical, there would be probable cause to search for drugs at least. That would have nothing to do with the arrest, though.

In Gant's situation, he was arrested for driving with a suspended license and there was, apparently, no probable cause to think he had committed any other crime. The Court's holding says that arrest alone doesn't furnish probable cause and that arrest alone is insufficient to permit a warrantless search.

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Then I agree with the decision.

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Originally Posted by Blake

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.

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Government pays for the streets that people walk on too. That doesn't mean that the government should have the right to search anyone on public property.

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Originally Posted by DarrinS

Then I agree with the decision.

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Thanks for finally reading. :)

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Originally Posted by Marcus Bryant

So we lose our constitutional rights when there's a subsidy? (There's a bit of old truth there about why a small, limited government is preferable).

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what constitutional right are you losing if a cop searches your vehicle?

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Originally Posted by LnGrrrR

Government pays for the streets that people walk on too. That doesn't mean that the government should have the right to search anyone on public property.

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I agree but I don't think cops searching people walking on sidewalks is an issue.

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Originally Posted by Blake

what constitutional right are you losing if a cop searches your vehicle?

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#4

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

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Originally Posted by jack sommerset

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

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Did you get a certificate for your free meal at Chili's then or did you have to wait for it to arrive in the mail?

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Originally Posted by Marcus Bryant

Did you get a certificate for your free meal at Chili's then or did you have to wait for it to arrive in the mail?

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I got the satisfaction that my tax dollars were being spent well. Its not always the case with the police.

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Originally Posted by jack sommerset

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

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And, in that instance, they had at the very least, some cause to institute a search. I'd be curious if you consented to the search, too, or whether they just told you they were going to search your car. But in either event, your scenario is a far cry from saying that arresting someone provides a reasonable basis to search to see if they've done anything else wrong.

At least they were efficient when they violated your constitutional right.

So all the law enforcement officer had that an individual was seen driving the same type of car as the suspect? That seems rather flimsy, but I'll defer to the actual member of the bar in this thread.

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Originally Posted by Marcus Bryant

So all the law enforcement officer had that an individual was seen driving the same type of car as the suspect? That seems rather flimsy, but I'll defer to the actual member of the bar in this thread.

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And the fact I was not wearing my seat belt

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Originally Posted by Marcus Bryant

So all the law enforcement officer had that an individual was seen driving the same type of car as the suspect? That seems rather flimsy, but I'll defer to the actual member of the bar in this thread.

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Oh, I agree. Hence my question about whether the satisfied citizen had consented to the search.

But as bases for searches go, the stated basis for that search seems stronger to me than the "Well, we arrested you so now we get to rifle through your car to see if we can get you on anything else" basis.

Now that I think about it, me and a buddy were pulled over one late night in San Antonio. He pulled us over,looked in the car and said something like " we our looking for someone else,have a good night" That whole encounter took 30 seconds. No big deal. Glad they are looking.

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Originally Posted by FromWayDowntown

Oh, I agree. Hence my question about whether the satisfied citizen had consented to the search.

But as bases for searches go, the stated basis for that search seems stronger to me than the "Well, we arrested you so now we get to rifle through your car to see if we can get you on anything else" basis.

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sorry. i said no problem with the search and pic.

aren't they still allowed to search the car if the officer has reasonable suspicion that there are weapons on board?

they find this shit anyway during the inventory of the car after it's impounded.

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Originally Posted by jack sommerset

sorry. i said no problem with the search and pic.

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And that's a substantial difference.

Without your consent, I'd think that search was unconstitutional, too.

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Originally Posted by Winehole23

Police found the drug in a search of his car after his arrest for driving with a suspended license. Gant had walked away from his car when he was arrested, and he sat handcuffed a distance away while police searched his vehicle.
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I think that's what did it there. The car wasn't in his immediate control or possession. The officers had no reason to think that any evidence could have been destroyed nor any weapons retrieved from the vehicle.

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Originally Posted by FromWayDowntown

And that's a substantial difference.

Without your consent, I'd think that search was unconstitutional, too.

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Honestly I don't know why anyone would say "no" especially knowing the police are video tapping the entire encounter. Officer Powell learned the hard way you can't just harass citizens.

Consent to search is always tricky. I've been asked a couple times for permission to search my car, and I've always felt like I was being coerced into it. If I let them search my car, they let me off with a warning (I usually get pulled over for gay shit like a dim headlight or no light on the license plate) and they get the chance to perhaps find something incriminating on me.

I feel that if I say no to a search then I get nailed with a fine. So it's kinda lose lose.

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Originally Posted by jman3000

Consent to search is always tricky. I've been asked a couple times for permission to search my car, and I've always felt like I was being coerced into it. If I let them search my car, they let me off with a warning (I usually get pulled over for gay shit like a dim headlight or no light on the license plate) and they get the chance to perhaps find something incriminating on me.

I feel that if I say no to a search then I get nailed with a fine. So it's kinda lose lose.

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I guess in my case its a win/win. I did not stand in the way of his investigation and I did not get a ticket.

Now a ticket, that's what, 4 meals at Chili's, Outback, or Applebee's?

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Originally Posted by Marcus Bryant

Now a ticket, that's what, 4 meals at Chili's, Outback, or Applebee's?

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What are u talking about?

Freedom isn't free, 'tis true.

I still don't know what you are talking about but if you think I let someone search my car and take my picture to get out of a ticket, you are dead wrong. Never even crossed my mind. Like I said, I thought it was strange. Later on I found out why the officer did this. No big deal.

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Originally Posted by Marcus Bryant

#4

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There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

Random extra screenings with magnetometer wands occur quite regularly at the airport, on top of the initial luggage x-ray screenings.

I will of course defer to the Supreme Court's opinion on the matter, but I don't really see much of a difference between random car searches and random extra screenings at the airport.

You gain absolutely nothing by letting an officer search your car. Unless of course you were in my situation and felt that you had no choice.

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Originally Posted by Blake

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

Random extra screenings with magnetometer wands occur quite regularly at the airport, on top of the initial luggage x-ray screenings.

I will of course defer to the Supreme Court's opinion on the matter, but I don't really see much of a difference between random car searches and random extra screenings at the airport.

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you have no expectation of privacy at an airport. It's a massive public building and obviously, due to safety reasons, some concessions on the 4th amendment must be made.

at the same time you have no expectation of privacy on the open road... but that applies to the plain view doctrine and dog searches. it's totally different in the obtrusivness of the searches. just like an 18 wheeler can be xrayed at a border checkpoint... it can't be torn apart inside out to look for something.

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Originally Posted by Blake

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

Random extra screenings with magnetometer wands occur quite regularly at the airport, on top of the initial luggage x-ray screenings.

I will of course defer to the Supreme Court's opinion on the matter, but I don't really see much of a difference between random car searches and random extra screenings at the airport.

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Thats a good point.

Awesome ruling. This should be a pretty big slap in the face to random drug busts for someone having a joint in the ashtray or the like.

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Originally Posted by jman3000

you have no expectation of privacy at an airport. It's a massive public building and obviously, due to safety reasons, some concessions on the 4th amendment must be made.

at the same time you have no expectation of privacy on the open road... but that applies to the plain view doctrine and dog searches. it's totally different in the obtrusivness of the searches. just like an 18 wheeler can be xrayed at a border checkpoint... it can't be torn apart inside out to look for something.

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Exactly

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Originally Posted by jman3000

you have no expectation of privacy at an airport. It's a massive public building and obviously, due to safety reasons, some concessions on the 4th amendment must be made.

at the same time you have no expectation of privacy on the open road... but that applies to the plain view doctrine and dog searches. it's totally different in the obtrusivness of the searches. just like an 18 wheeler can be xrayed at a border checkpoint... it can't be torn apart inside out to look for something.

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what's the difference of airport security checking your bag at the airport and a DPS officer checking your bag on the road?

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Originally Posted by Blake

what's the difference of airport security checking your bag at the airport and a DPS officer checking your bag on the road?

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At the airport you can take your bag, turn around, and leave.

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Originally Posted by MannyIsGod

Exactly

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I'm fairly certain the airport building itself is not the reason for airport security.

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Originally Posted by baseline bum

At the airport you can take your bag, turn around, and leave.

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Nobody is forcing anyone to drive their car on a public street.

They can walk to the airport.

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Originally Posted by MannyIsGod

Awesome ruling. This should be a pretty big slap in the face to random drug busts for someone having a joint in the ashtray or the like.

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actually.....and someone can correct me if I'm wrong......but a visible joint in the ashtray, or the smell of weed in the car, is easily probable cause for a warrantless search.

I think Manny meant post arrest, but you're surely correct.

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Originally Posted by Blake

Nobody is forcing anyone to drive their car on a public street.

They can walk to the airport.

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Then you should be ok with the driver telling the cop to fuck off and pulling onto private property.

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Originally Posted by jman3000

Consent to search is always tricky. I've been asked a couple times for permission to search my car, and I've always felt like I was being coerced into it. If I let them search my car, they let me off with a warning (I usually get pulled over for gay shit like a dim headlight or no light on the license plate) and they get the chance to perhaps find something incriminating on me.

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I don't know you but your stories give me the distinct impression that officers are concluding something about you based upon your appearance or your car type, and with that I have a huge problem. Why do they need to search your car if the light is out by your license plate?

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Originally Posted by Blake

Nobody is forcing anyone to drive their car on a public street.

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I have always wondered about private streets in gated subdivisions. I once had an SAPD motorcycle cop follow me down the road quite some distance and then follow me into my gated subdivision. He then followed me down a couple of streets and finally stopped to tell me that I should not be pulled over facing the wrong direction on the side of the road to get my mail. He never asked for a license or wrote me a ticket- I do not even know if he can. A friend with SAPD told me the cop was probably looking to meet women- seriously.

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Originally Posted by Winehole23

I think Manny meant post arrest, but you're surely correct.

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he probably did.

Fock him any way. :lol

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Originally Posted by baseline bum

Then you should be ok with the driver telling the cop to fuck off and pulling onto private property.

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not if you tell him to fock off on a public street before pulling onto private property.

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Originally Posted by ploto

I have always wondered about private streets in gated subdivisions. I once had an SAPD motorcycle cop follow me down the road quite some distance and then follow me into my gated subdivision. He then followed me down a couple of streets and finally stopped to tell me that I should not be pulled over facing the wrong direction on the side of the road to get my mail. He never asked for a license or wrote me a ticket- I do not even know if he can. A friend with SAPD told me the cop was probably looking to meet women- seriously.

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No, he can't write you a ticket in a gated community that maintains their own streets. You can look at a planned unit development basically the same way as a giant ranch.

Unless you committed some offense on the public street, by following you in through the gate means he was technically trespassing.

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Originally Posted by Blake

There are constant questions regarding the 4th amendment and what our rights really are. There are also constant questions as to what constitutes probable cause.

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I would hope most feel that the citizen's rights should supercede the needs/wants of the State.

Sadly, it seems your average American is so damn scared to leave their house, theyd rather the State have more power than intended in order to better protect them.

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Originally Posted by Blake

No, he can't right you a ticket in a gated community that maintains their own streets. You can look at a planned unit development basically the same way as a giant ranch.

Unless you committed some offense on the public street, by following you in through the gate means he was technically trespassing.

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That's not true at all. It might be that the officer is prohibited from writing a ticket for violating a law that applies only to that street -- a speed limit, for example -- but if the driver undertakes an act that is prohibited anywhere in the state -- something like reckless driving -- the officer damned sure can write a ticket for that act. Think about it this way: if there's a wreck in a gated community, who comes to investigate? The local police or sheriff. And when the agent of that investigatory body arrives, he's not prohibited from assessing blame or charging the blameworthy party or parties from violation of the law.

In the same way, an officer surely can arrest someone for crimes committed within a private home.

All of that ignores the point of the entire issue here. There is no doubt that a police officer, to conduct a search of a person's vehicle must have probable cause to support the search and the issuance of a warrant or he must have some basis to proceed under an exception to the warrant requirement. A person's mere presence on a public roadway does not create an exception to the warrant requirement and it doesn't create probable cause. That's true substantially because a person has an expectation of privacy -- though one that might be slightly diminished -- while in a motor vehicle. The Fourth Amendment is certainly intended (at least in part) to protect the privacy of individuals from baseless governmental infringement. The constitutional tradeoff is that if government can develop probable cause to believe that a particular crime is occurring (or has occurred) in a specific place, it can search private places. Without that probable cause, the individual right to privacy (not expressed in the 4th Amendment, but necessarily implied in the protection it affords) wins out - period.

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Originally Posted by FromWayDowntown

That's not true at all. It might be that the officer is prohibited from writing a ticket for violating a law that applies only to that street -- a speed limit, for example -- but if the driver undertakes an act that is prohibited anywhere in the state -- something like reckless driving -- the officer damned sure can write a ticket for that act. Think about it this way: if there's a wreck in a gated community, who comes to investigate? The local police or sheriff. And when the agent of that investigatory body arrives, he's not prohibited from assessing blame or charging the blameworthy party or parties from violation of the law.

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I assumed we were talking traffic violations.

A citation for reckless driving on private property is debatable.....depends on the situation, and really, the cop would have to be invited in by someone in the community to enforce such a violation.

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In the same way, an officer surely can arrest someone for crimes committed within a private home.

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I thought it was understood that a cop can come onto the property when invited in to investigate, say......murder?

I guess it wasn't.

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All of that ignores the point of the entire issue here. There is no doubt that a police officer, to conduct a search of a person's vehicle must have probable cause to support the search and the issuance of a warrant or he must have some basis to proceed under an exception to the warrant requirement. A person's mere presence on a public roadway does not create an exception to the warrant requirement and it doesn't create probable cause. That's true substantially because a person has an expectation of privacy -- though one that might be slightly diminished -- while in a motor vehicle. The Fourth Amendment is certainly intended (at least in part) to protect the privacy of individuals from baseless governmental infringement. The constitutional tradeoff is that if government can develop probable cause to believe that a particular crime is occurring (or has occurred) in a specific place, it can search private places. Without that probable cause, the individual right to privacy (not expressed in the 4th Amendment, but necessarily implied in the protection it affords) wins out - period.

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I don't disagree with any of that......especially the part about diminished privacy while operating a motor vehicle on a public street.

I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.

I draw the line at cavity searches.

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Originally Posted by Blake

I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.

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BB said it best. In an airport, you can turn around and walk out.

Not so much on a public road. You being a small part of the financing of that road, I might add.

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Originally Posted by DarkReign

BB said it best. In an airport, you can turn around and walk out.

Not so much on a public road. You being a small part of the financing of that road, I might add.

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Have you ever driven to Hawaii? Me neither. I usually go to the airport that I was a small part of the financing of.

You can turn around and go home if you don't want to be in a car on a public road.

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Originally Posted by Blake

Have you ever driven to Hawaii? Me neither. I usually go to the airport that I was a small part of the financing of.

You can turn around and go home if you don't want to be in a car on a public road.

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http://bp1.blogger.com/_m0ulqdPiC3k/...ever-girl!.jpg

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Originally Posted by DarrinS

Is this a good thing?

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Originally Posted by Blake

I'm thinking it's not a good thing.

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Why? There is already cause for the arrest. Some police just have fun trashing peoples cars for no reason, yet it's done with acceptable practices, so they aren't held accountable.

What reasonable suspicion did the car give them to be violated? What did the car do?

Let the information gained be used for a request of a warrant, then searched in a controlled environment. The car is a place that contraband can be stashed, but so is public transportation, shops, etc. If the police follow a suspect, do they search all those places without a warrant?

What if it was your car that was loaned out or stolen. Would you want the upholstery ripped up for no good reason?

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Originally Posted by DarrinS

Say a cop pulls someone over and there's a strong smell of marijuana coming from the vehicle, the driver has a powdery residue on his nose, and the back seat is stacked with car stereo equipment. The cop has to wait for a judge to issue a warrant before searching the vehicle? Am I misinterpreting this?

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What does it hurt to arrest the suspects, impound the vehicle, and verify any story about the good before issuing the warrant? What if they were in fact high, but moving? You didn't say anything like they were a dozen on the same Blu-Ray players in the boxes...

Even under that case. Isn't seeing the goods more a reason to arrest, without the need to search?

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Originally Posted by jack sommerset

I was pulled over a few years back for not wearing a seat belt. They searched my car, took my picture with a polaroid and gave me a warning for the seat belt. I thought it was strange but the officer was polite and fast. Later I found out they were looking for a person driving the type of car I had for robbing a store and assaulting a women. I have no problem with them doing what they did.

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So they see your car parked in your driveway, matching the description. I guess you'd be OK with them braking down your door?

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Originally Posted by Blake

I don't disagree with any of that......especially the part about diminished privacy while operating a motor vehicle on a public street.

I just wonder about the inconsistency (in my opinion) between searching a person's bag in an airport and searching their bag on a public road.

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(I had written a long response to this, but somehow in typing more managed to delete it -- I don't have time now to recreate all that I had written. What follows is a synopsis)

In reading a bit about this, airport screenings have been upheld because they amount to administrative searches that are supported by special needs in the same way that border checkpoints and sobriety checkpoints are viewed as constitutionally permissible while checkpoints aimed at ferreting out criminal activity, in general, are not permissible.

The distinction, I think, is that airport screenings arise from a very specific need -- the need to prevent criminal conduct on airplanes where law enforcement is sparse if available at all (and, thus, unable to deter crimes in progress) -- and is intended only to obtain a binary answer to whether a particular passenger is travelling with specific types of contraband or engaging in specific kinds of conduct. By contrast, a search out on a public roadway without pre-existing probable cause tends to arise from a more general interest -- an interest in determining whether the person is engaged in some type of criminal activity, without regard to the possession of any specific type of contraband or the undertaking of any specific kind of conduct.

While I can see that the answer might not be one that fully satisfies some skeptics, at the present time, that is the constitutional distinction that allows one and not the other. See United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)(en banc)(holding that airport screening without warrant is constitutionally-permissible "because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.'"); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000)("We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543 (1976), and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.").

For what it's worth, Aukai is quite clear in saying that the constitutional basis for airport screenings has nothing to do with implied consent. The Court had to deal with that issue because the defendant had, in the midst of his screening, disavowed any intent to get on the airplane and argued that he no longer had consented to the search. The Ninth Circuit essentially held that once you get to the point of engaging a screener at all, the administrative search is constitutionally reasonable and may be continued even if you decide that you aren't going to fly.

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Originally Posted by FromWayDowntown

(I had written a long response to this, but somehow in typing more managed to delete it -- I don't have time now to recreate all that I had written. What follows is a synopsis)

In reading a bit about this, airport screenings have been upheld because they amount to administrative searches that are supported by special needs in the same way that border checkpoints and sobriety checkpoints are viewed as constitutionally permissible while checkpoints aimed at ferreting out criminal activity, in general, are not permissible.

The distinction, I think, is that airport screenings arise from a very specific need -- the need to prevent criminal conduct on airplanes where law enforcement is sparse if available at all (and, thus, unable to deter crimes in progress) -- and is intended only to obtain a binary answer to whether a particular passenger is travelling with specific types of contraband or engaging in specific kinds of conduct. By contrast, a search out on a public roadway without pre-existing probable cause tends to arise from a more general interest -- an interest in determining whether the person is engaged in some type of criminal activity, without regard to the possession of any specific type of contraband or the undertaking of any specific kind of conduct.

While I can see that the answer might not be one that fully satisfies some skeptics, at the present time, that is the constitutional distinction that allows one and not the other. See United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)(en banc)(holding that airport screening without warrant is constitutionally-permissible "because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.'"); see also City of Indianapolis v. Edmond, 531 U.S. 32 (2000)("We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543 (1976), and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.").

For what it's worth, Aukai is quite clear in saying that the constitutional basis for airport screenings has nothing to do with implied consent. The Court had to deal with that issue because the defendant had, in the midst of his screening, disavowed any intent to get on the airplane and argued that he no longer had consented to the search. The Ninth Circuit essentially held that once you get to the point of engaging a screener at all, the administrative search is constitutionally reasonable and may be continued even if you decide that you aren't going to fly.

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Damn, that's some legal scholarship. My next trial memo will have the following cite -

See Downtown, From Way, Supreme Court Limits Warrantless Car Searches, Spurstalk Forums, post #68, April 22, 2009.

I was just going to say that there's a clear distinction codified in the law about airport/border check point searches vs other criminal searches. FWD beat me to it.
I like this decision, and I honestly think airport/border checks should follow next, in the sense of relaxing them a bit. In all honesty, I see them more of a 'make people feel secure' than actual security.

um, yes the government pays for the public roads

but who pays the government ? taxpayers.

so we are back to square one.

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Originally Posted by ploto

I don't know you but your stories give me the distinct impression that officers are concluding something about you based upon your appearance or your car type, and with that I have a huge problem. Why do they need to search your car if the light is out by your license plate?


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It's a mixture of driving late at night and officers being bored and looking for something to do.

One time I was droping a female friend off at her house and I didn't know the area very well so I was driving slowly. An officer pulled me over and said he was stopping me for a dim light on my plates. After we told him our stories, and he ran my information, he told us that the stop was just a (and I quote) "a chicken shit reason to pull you over. i really thought you were casing houses. Not really something I can prove, but there have been some robberies in the area and you never know. Y'all have a good night"

I've had my car searched 3 times. Once was after a stop for a broken headlight, one was for a stop for a broken tail light, and one was for taking a turn a little bit too fast.

The first two I put under a bored cop looking for a bust. The 3rd I put under them thinking I was under the influence.

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Originally Posted by jack sommerset

Now that I think about it, me and a buddy were pulled over one late night in San Antonio. He pulled us over,looked in the car and said something like " we our looking for someone else,have a good night" That whole encounter took 30 seconds. No big deal. Glad they are looking.

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or they're fucking with you cuz you're DWB.

Where does this leave the Carroll doctrine?

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Originally Posted by Oh, Gee!!

or they're fucking with you cuz you're DWB.

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That can be a capital offense in some counties.

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Originally Posted by Wild Cobra

So they see your car parked in your driveway, matching the description. I guess you'd be OK with them braking down your door?

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How is that the same?

The government doesn't pay for shit.



And Cavity searches should be unconstitutional. If you are going to go through that much trouble, god bless you.

I'm very surprised that people would for some reason gladly surrender their rights to the state. It makes no sense. Do you gladly submit to all higher authority, or just the government?

Shocking, to me. Not only is security replacing liberty as an object of civil reverence, liberty itself gets offered up as a willing tribute to it. Creepy.

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Originally Posted by Winehole23

Shocking, to me. Not only is security replacing liberty as an object of civil reverence, liberty itself gets offered up as a willing tribute to it. Creepy.

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There is a clear result of the Bush presidency. It is undeniable many people are now more comfortable with a more authoritative presence of the government.

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Originally Posted by Blake

what constitutional right are you losing if a cop searches your vehicle?

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The right to be free from unreasonable search and seizure. If the cop can not REASONABLY deduce you have drugs in your car, or a weapon, or something like that, then he shouldn't have that right. It's simple.

If you get stopped for jaywalking, should a cop be able to search your person?

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Originally Posted by Blake

I agree that government shouldn't be poking in where it shouldn't, but government pays for the roads that the public drives on.

I don't see the problem with a search of a vehicle on a public road.

Rodney Gant is a free man, though.

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The government doesn't pay for the vehicle however. That is my property.

Does that mean the government can, say, rifle through my pockets while I am walking down the sidewalk, if they paid for the sidewalk?

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Originally Posted by Blake

what constitutional right are you losing if a cop searches your vehicle?

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Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



http://www.usconstitution.net/const.html#Am4

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Originally Posted by Blake

what's the difference of airport security checking your bag at the airport and a DPS officer checking your bag on the road?

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Is an airport considered 'public property' in the same sense that a highway would?

Also, I wouldn't be surprised if there was some 'implied consent to be searched' at an airport as well, held up by some court ruling. I think that's BS as well... airport security is a joke.

Edit: I see FromWay already posted it. Nice to know my guesses were correct. :)

The real problem is the pigs are trained piss poor and to many Officer Powells are roaming our streets in squad cars. Some take advantage of their positions. Like I said before I have no problem if I am stopped in a car for them to search my ride. If I feel they did not have a reasonable cause for pulling me over in the first place or acted inappropriately I will file a complaint. Good news is most cop cars have video that record the entire instance.

Jimmy Smith (former NFL player) was pulled over because of over tinted windows. Just a traffic stop. Routine search finds crack in his car. Nice job. Another crackhead gets busted. Get that shit off the street!

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Originally Posted by sabar

I'm very surprised that people would for some reason gladly surrender their rights to the state. It makes no sense. Do you gladly submit to all higher authority, or just the government?

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This is no longer the land of Jefferson. Love of country has been bastardized into love of the state. Many don't distinguish between the two. Not to mention there's no understanding of our form of government and from whom and through what agreement it obtains its consent to govern. Loss of liberty is justified by provision of "security" (Franklin spoke about that once).

It's interesting when our history is whitewashed in order to propagate the lie that this nation was founded as some kind of authoritarian nanny-state. Both major political parties engage in such revisionism. The Constitution is deemed a relic by politicians on the left and right (there's a good quote of GWB regarding this).

All institutions in our society seem geared towards keeping the people under control. Our schools turn out good little drones ready for corporate life. Our laws will be interpreted so as to protect your liberty so long as its the liberty that any red-blooded, God-fearing man (or his woman) accepts. The police will protect your liberty by stopping you at their whim and asking for your papers. The media is content to agitate the masses with the latest 48 media cycle hubub of the moment. All of this seems designed to force you, yes you, to serve the state (and its real benefactors). Nevermind that the contract you thought you were a party to which was ultimately designed to protect your right to life, liberty, and the pursuit of happiness (yours, not that of some egoist running for public office) says otherwise.

We are a nation built on the premise of a free people, who are no longer free, but subservient chattle of the great red, white, & blue Leviathan of Washington DC (and its sponsors).

Perhaps Uncle Sam can start selling off naming rights to various national landmarks. Or cabinet level departments. Fuck it, it's time for a drink.

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Originally Posted by jack sommerset

Jimmy Smith (former NFL player) was pulled over because of over tinted windows. Just a traffic stop. Routine search finds crack in his car. Nice job. Another crackhead gets busted. Get that shit off the street!

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Why stop there? We should have random, surprise searches of all homes to find the crack and eliminate it from our society.

Who knows? Maybe those searches would turn up a random Muslim or two.

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Originally Posted by MiamiHeat

um, yes the government pays for the public roads

but who pays the government ? taxpayers.

so we are back to square one.

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Within Article 1; Section 8:

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To establish post offices and post roads;

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Technically, the government is suppose to build the roads. I would agree that to extend that means to maintain them as well. At least routs that the Postal Service uses.

Maybe we should increase the price of postage instead if increasing the gas tax?

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Originally Posted by jack sommerset

How is that the same?

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If you're OK with them searching your car simply because it has the right description, then wouldn't it stand to reason that what they were looking for, you took inside the house?

Where do we cross that big grey line between reasonable and unreasonable?

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Originally Posted by Marcus Bryant

Why stop there? We should have random, surprise searches of all homes to find the crack and eliminate it from our society.

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No kidding. Let's not open such cans of worms. When does it stop?

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Originally Posted by Wild Cobra

No kidding. Let's not open such cans of worms. When does it stop?

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One could say the same of things like warrantless wiretapping.

:stirpot:

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Originally Posted by Wild Cobra

If you're OK with them searching your car simply because it has the right description, then wouldn't it stand to reason that what they were looking for, you took inside the house?

Where do we cross that big grey line between reasonable and unreasonable?

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You assume because I did not wear my seat belt I am ok with them searching my house.:lol I would not.

I would be OK if someone described my house in a crime to come search it. If a girl says she was raped there or kid molested. They can come right in and search away. No problem

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Originally Posted by FromWayDowntown

One could say the same of things like warrantless wiretapping.

:stirpot:

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Except that it is reasonable under the conditions they do it!

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Originally Posted by jack sommerset

You assume because I did not wear my seat belt I am ok with them searching my house.:lol I would not.

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then why are you OK with searching your car? What probable cause do they have?

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Originally Posted by Wild Cobra

Except that it is reasonable under the conditions they do it!

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Oh yes, the old "Wild Cobra Reasonableness Test" carries the Constitutional day, yet again!

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Originally Posted by Wild Cobra

then why are you OK with searching your car? What probable cause do they have?

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Police officer was looking for a suspect and it happened I drove a car with the description. Thats why.

If a cop says I want to search ur house because u were not wearing ur seat belt, makes no sense to me so I would say no. Common Sense people. Common sense.

Why lose sleep over a cop taking a few minutes out of ur day to search ur trunk? People are worried about getting fucked over is why. I am not. Search away.

FYI. Protect urself. I have recording devices located in my ride and home. They did not cost much and it makes me feel better.

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Originally Posted by jack sommerset

Police officer was looking for a suspect and it happened I drove a car with the description. Thats why.

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Exactly. Now that you are inside the house, and he's looking for a suspect, why not search your house?

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Originally Posted by jack sommerset

If a cop says I want to search ur house because u were not wearing ur seat belt, makes no sense to me so I would say no. Common Sense people. Common sense.

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Does it make sense to search your car because you're not wearing your seat belt?

It doesn't to me. What am I missing?

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Originally Posted by jack sommerset

Why lose sleep over a cop taking a few minutes out of ur day to search ur trunk? People are worried about getting fucked over is why. I am not. Search away.

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Principle.

What probable cause did he have that shouldn't extent into your house?

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Originally Posted by Marcus Bryant

Who knows? Maybe those searches would turn up a random Muslim or two.

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What?

I thought I heard my name...