A MODEST PROPOSAL FOR FIGHTING
ORGANIZED CRIME: STOP TAKING THE
FOURTH AMENDMENT SO SERIOUSLYt
Arnold H. Loewy*
I am grateful to the editors of the Rutgers Law Journal for inviting me
to participate in their important symposium on organized crime. This
Article addresses the critical prosecutorial problem of obtaining evidence
sufficient to convict these purveyors of evil whose misdeeds outrage the
populace. Much of the difficulty in obtaining this evidence inheres in the
misguided belief of some unfortunate police officers that merely because
the fourth amendment is part of our Constitution, it is to be taken seriously.
It is the purpose of this Article to establish that inasmuch as this antiquated
notion has been rejected by the judiciary, it is time for the police to accept
the invitation of those more learned in the law and stop taking the fourth
amendment so seriously. This Article will first establish that United States
Supreme Court decisions have in fact invited the police to stop taking the
fourth amendment seriously, and second that sound notions of public
policy suggest that the police accept this invitation enthusiastically.
While many Supreme Court decisions have established the proposition that the fourth amendment is not to be taken seriously, none support it
better than those that have admitted unconstitutionally seized evidence at
trial because the evidence was seized in contravention of a third person's
constitutional rights. Although this concept has been part of our jurisprudence for several years, it has only been since 1978 that the Court has
openly encouraged unconstitutional searches and seizures. This is not to
say that earlier decisions did not encourage unlawful searches. For
example, in Brown v. United States,' the petitioners were convicted of
transporting stolen goods on the basis of evidence unlawfully obtained
t The similarity between the title of this Article and that of Jonathan Swift's classic
essay, A Modest ProposalFor PreventingThe Children Of IrelandFrom Being A Burden
To Their Parents Or Country, is not entirely coincidental.
* Professor of Law, University of North Carolina School of Law. B.S. 1961, J.D.
1963, Boston University; LL.M. 1964, Harvard University. The author would like to thank
Paul M. James, III, a recent graduate of the University of North Carolina School of Law,
for his assistance in researching this Article.
1. 411 U.S. 223 (1973).
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from a co-conspirator to whom they had delivered the goods.2 The Court
upheld the convictions determining that the petitioners failed to allege any
legitimate interest in the premises searched or the merchandise seized. 3
While a diligent police officer might have read this opinion and understood
that under some circumstances he could unlawfully search A and still use
the evidence against B, he should not have assumed a carte blanche power
to do so. The Court specifically limited its holding to cases in which
the defendants: (a) were not on the premises at the time of the contested
search and seizure; (b) alleged no proprietary or possessory interest in the
premises; and (c) were not charged with an offense that includes, as an
essential element of the offense charged, possession of the seized evidence
at the time of the contested search and seizure.'
In 1978 and 1980, an important series of decisions discarded these
limitations, and virtually guaranteed our diligent police officer the previ5
ously missing carte blanche power.
The first of these cases, Rakas v. Illinois,6 allowed evidence that was
7
obtained from a presumptively unconstitutional search of an automobile
to be used against two of the passengers of the automobile who were targets
2. Id. at 224-26. The co-conspirator successfully moved to have the unlawfully seized
evidence suppressed for use against him. Id. at 226.
3. Id. at 229-30. The petitioners asserted that they had "automatic" standing to
challenge the search and seizure, relying on Jones v. United States, 362 U.S. 257 (1960).
The Brown court determined that Jones was inapplicable, as "the Government's case
against petitioners [did] not depend on petitioners' possession of the seized evidence at the
time of the contested search and seizure." Brown, 411 U.S. at 228.
4. Id. at 229. The Court did not decide whether all three factors were essential to deny
standing.
5. Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83
(1980); Rawlings v. Kentucky, 448 U.S. 98 (1980); United States v. Payner, 447 U.S. 727
(1980).
6. 439 U.S. 128 (1978).
7. Since Rakas was denied standing the unconstitutionality of the search was never
determined. Id. at 129-30. It is difficult to conceive that the police had probable cause to
search the car, however, under the facts in Rakas: police were looking for a 1970 blue
Plymouth Roadrunner used as a getaway car after the robbery. The car was described as
having a white racing stripe and damage to the front. The license was said to be SA,
numbers unknown. The fleeing robbers were described as two white males, one wearing a
blue shirt and dark jacket. Police stopped and searched, at gunpoint, a 1970 purple
Roadrunner with no stripe or damage to the front. The car's license plate was RT-6237. The
car had four occupants in it, two men and two women. One of the men was wearing a blue
shirt. Just before the car was stopped it was described as traveling at an unusually slow pace.
See Appendix at 4-24, Rakas v. Illinois, 439 U.S. 128 (1978). However, before the car was
stopped the real getaway car had already been recovered. Brief for Petitioners at 6, id.
Assuming that one could stretch these facts as giving rise to a reasonable suspicion sufficient
to allow the police to stop the vehicle, it is unimaginable that the police had probable cause
for their gunpoint search.
1985]
FOURTH AMENDMENT
of the search. The Court not only rejected the petitioners' argument that
the target of a search or seizure should be permitted to challenge its
constitutionality 8 but also held, contrary to what had always been
assumed,9 that a passenger in an automobile with the permission of the
owner could not challenge the constitutionality of a search of that
automobile. 10 The enormous potential for the diligent police officer was
succinctly explained in Justice White's dissent:
This decision invites the police to engage in patently unreasonable searches
every time an automobile contains more than one occupant. Should
something be found, only the owner of the vehicle, or of the item,""i will
have standing to seek suppression, and the evidence will presumably be
usable against the other occupants. 2
The Court's message for those fighting organized crime should be
clear. Organized criminals frequently travel together in automobiles.
Whenever a police officer sees two or more suspected organized criminals
traveling together, he can search their car, secure in the knowledge that
any evidence which is found probably will be admissible against at least one
of the criminals. Consequently, it behooves a police force seriously
committed to combatting organized crime to monitor organized criminals
constantly so that no opportunity to search a carload of criminals will be
squandered.
Less than two years later, the promise of Rakas was significantly
expanded by the companion cases of United States v. Salvucci 3 and
Rawlings v. Kentucky.1 4 Salvucci specifically overruled a prior decision1" and held that in a prosecution for possession of a given item (in this
8. Rakas, 439 U.S. at 132-38. Although this holding was probably not an innovation
in fourth amendment jurisprudence, cf. Alderman v. United States, 394 U.S. 165 (1969)
(target of search may not challenge its unconstitutionality), it holds great potential for the
diligent police department that is "out to get" someone. See infra text accompanying notes
28-39. See United States v. Payner, 447 U.S. 727 (1980).
9. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Chambers v. Maroney,
399 U.S. 42 (1970) (person convicted of crime based on evidence seized in search of vehicle
in which he had been passenger permitted to challenge validity of search).
10. Rakas, 439 U.S. at 148-49.
i1. Ownership of the item seized is no longer a sufficient basis for challenging an
unlawful search. See Rawlings v. Kentucky, 448 U.S. 98 (1980) (discussed infra text
accompanying notes 20-27).
12. 439 U.S. at 168-69 (White, J., dissenting) (footnote omitted).
13. 448 U.S. 83 (1980).
14. 448 U.S. 98 (1980).
15. The"automatic standing" rule of Jones v. United States, 362 U.S. 257 (1960) (see
supra note 3), was explicitly overruled by the Court. The Court stated that because the
original purposes for the rule no longer existed, and because there were no alternative
purposes for the rule, the rule should not be retained. Salvucci, 448 U.S. at 89.
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case, stolen mail), the person accused of possession does not necessarily
have standing to challenge the unconstitutional search that yielded the
item he allegedly possessed.1 Despite Salvucci's argument that it was
contradictory for the government to argue both that he possessed the seized
items and that he could not challenge the search which yielded them, the
Court found no contradiction.
7
Rather, it held that only those with a
legitimate expectation of privacy in the place searched could challenge the
search. 8 Because Salvucci did not challenge the constitutionality of the
seizure of the items once they were found, but challenged only the search
that yielded them, his alleged possession of the items seized did not
establish standing. 19 By thus separating the components of search from
those of seizure, the Court was able to prevent another criminal from
escaping justice merely because the evidence necessary to convict him was
obtained in violation of the Constitution.
Rawlings v. Kentucky involved a presumptively unconstitutional
search of a purse belonging to Rawlings' companion which yielded drugs
belonging to Rawlings.20 Although Rawlings had placed the drugs in his
16. Id. at 91.
17. Id. at 90. The court stated that its previous decisions, especially Rakas v. Illinois,
439 U.S. 128 (1978) (see supra notes 6-12 and accompanying text), clearly established that
no contradiction existed. Salvucci, 448 U.S. at 90.
18. Salvucci, 448 U.S. at 91-93.
19. Id. at 91 & n.6.
20. Rawlings, 448 U.S. at 114 (Marshall, J., dissenting). Kentucky conceded the
unconstitutionality of the search, a concession that the dissent thought was compelled by
Ybarra v. Illinois, 444 U.S. 85 (1979). Rawlings, 448 U.S. at 114 (Marshall, J., dissenting).
Arguably, however, the concession was not necessary. Ybarra involved a search of several
bar patrons during the arrest of a bartender. The only basis for the search was the presence
of these patrons at a public place while an arrest warrant was served on an employee of the
place. Rawlings, on the other hand, involved a search following the procurement of a search
warrant predicated on the lawful discovery of marijuana in a house, at which Rawlings and
his companion were guests. Rawlings, 448 U.S. at 100-01. Arguably, the search could have
been upheld on the theory that finding marijuana in the house subjected all the occupants to
arrest, in which case the search would have been legal as a search incident to the arrest. See
Chimel v. California, 395 U.S. 725 (1969). This solution commended itself to the Kentucky
Court of Appeals. Rawlings, 448 U.S. at 103. Alternatively, since the warrant authorized a
search of the house, it could be argued that the purse, being in the house, was subject to
being searched. Cf. United States v. Ross, 456 U.S. 798 (1982) (upholding search of
container found in car because there was probable cause to search car). I am not suggesting
that this search was necessarily constitutional, only that it was not clearly unconstitutional.
Of course, it is easier for the State to win if the constitutionality of the search is
considered irrelevant than it would be if the State had to establish its constitutionality. This
suggests the motivation for Kentucky's arguably unnecessary concession. Cf. United States
v. Leon, 104 S. Ct. 3405, 3412 (1984) (government conceded unconstitutionality of search,
arguably incorrectly, so that Court could use case as vehicle for adopting "good faith"
exception to exclusionary rule).
1985]
FOURTH AMENDMENT
companion's purse, presumably with her permission," the Court held that
neither his ownership of the drugs nor his interest in his companion's purse,
which she had granted him, were sufficient to allow him to challenge the
constitutionality of the search.22 Because of the decision in Salvucci,
Rawlings could not successfully predicate his fourth amendment claim on
his ownership of the drugs, notwithstanding several earlier decisions that
had predicated standing on precisely that ground.2 3 One might have
thought that his interest in the purse, which was sitting between him and its
owner on a couch at the time it was unconstitutionally searched, might be
sufficient to allow a fourth amendment challenge. It was not, according to
this Court which held that he had no reasonable expectation of privacy in
the purse for several reasons. 4 First, Rawlings testified that he expected
the purse to be searched (a not surprising expectation in view of the fact
that the police told him that it would be searched). Second, he had known
Ms. Cox, the owner of the purse, only a few days (although he had slept at
her home for two of those nights). Third, this was a first-time bailment.
Fourth, another friend of Ms. Cox had access to the purse, although there
was no evidence that Rawlings knew this. Fifth, by precipitously placing
the drugs in Ms. Cox's purse, Rawlings failed to take normal precautions to
maintain his privacy (although presumably Ms. Cox could have challenged the identical search of the identical purse) .25After analyzing these
aspects of Rawlings, Professor Wayne LaFave concluded: "Because
Rawlings is based upon a series of notions which, if taken seriously, would
reduce the fourth amendment to nothing more than 'a form of words,' it is
hoped that the decision will have a short life."'28 While Professor LaFave is
undoubtedly correct in his assessment of the impact of Rawlings, his
analysis fails to appreciate the importance the Court attaches to freeing the
police, to the greatest extent analytically possible, from the disruptive
shackles of the fourth amendment. Justice Marshall's dissent in Rawlings
more accurately explains the social utility achieved by the Court:
In the words of Mr. Justice Frankfurter: "A decision [of a fourth
21. There was a factual dispute between Rawlings and his companion as to whether
she had given him permission to place his drugs in her purse. See Rawlings, 448 U.S. at 101
& n. 1. Nevertheless, the opinion appears to be predicated on the assumption that Rawlings
was telling the truth.
22. Id. at 105-06.
23. E.g., Jones v. United States, 362 U.S. 257; United States v. Jeffers, 342 U.S. 48,52
(1951).
24. Rawlings, 448 U.S. at 104-05.
25. See 3 W. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT 11.3, at 224-28 (Supp. 1984).
26. Id. at 228 (footnote omitted).
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amendment claim] may turn on whether one gives that Amendment a place
second to none in the Bill of Rights, or considers it on the whole a kind of
nuisance, a serious impediment in the war against crime." . . . Today a
majority of the Court has substantially cut back the protection afforded by
the Fourth Amendment and the ability of the people to claim that
protection, apparently out of concern lest the government's ability to obtain
27
criminal convictions be impeded.
By far the most significant case in the series is United States v.
Payner,26 a case in which the Internal Revenue Service (IRS) intentionally
violated the fourth amendment rights of an individual in order to obtain
evidence against another individual. The full import of this case cannot be
appreciated without a detailed understanding of the flagrancy of the
violation, which was so extreme that two lower federal courts excluded the
evidence under their supervisory powers. 29 The Supreme Court disallowed
the use of the supervisory powers, reversed the lower courts' judgments,
and reinstated the conviction."0
Payner involved a scheme by the IRS to obtain documents from one
Michael Wolstencroft, a Bahamian bank executive who was thought to
have documents incriminating several unknown Americans.3 1 In order to
obtain these documents, Norman Casper, a private investigator employed
by IRS agent Richard Jaffe, proposed a scheme to Jaffe in which the
desired documents could be stolen, copied, and replaced. Jaffe, aware that
unconstitutionally seized evidence could be admitted against a non-victim
of the search,3 2 approved the scheme.
Thus, Casper, who had cultivated a friendship with Wolstencroft,
introduced him to Sybol Kennedy who, unknown to Wolstencroft, was a
private detective employed by Casper. Kennedy's role in the scheme was to
27. Rawlings, 448 U.S. at 120-21 (quoting Harris v. United States, 331 U.S. 145, 157
(1947) (Frankfurter, J., dissenting)).
28. 447 U.S. 727 (1980).
29. 434 F. Supp. 113, 133-35 (N.D. Ohio 1977), afid, 590 F.2d 206, 207 (6th Cir.
1979) (per curiam), rev'd, 447 U.S. 727 (1980). Under the court's supervisory powers, the
federal judiciary is empowered to take actions which will further the ends of justice. 434 F.
Supp. at 133 (citing McNabb v. United States, 318 U.S. 332 (1943)). The district court
determined that the government had acted illegally and in bad faith, and society's interest in
deterring such conduct outweighs society's interest in providing the trier of fact with
relevant evidence. Payner, 434 F. Supp. at 135. The court of appeals agreed that
suppression was justified under the supervisory powers. 590 F.2d at 207.
30. Payner, 447 U.S. at 734-35.
31. Id. at 729-30. Wolstencroft was vice-president of the Castle Bank and Trust
Company of Nassau, Bahama Islands, on which investigators had focused attention when it
was learned that a suspected narcotics trafficker had an account there. Id. at 729.
32. See generally 434 F. Supp. at 118-22.
19851
FOURTH AMENDMENT
have Wolstencroft meet her at her Miami apartment and go out to dinner
together, with his briefcase filled with papers left behind in her apartment.
Casper, who had been provided a key to the apartment, was to enter the
apartment, steal the briefcase, and bring it to an IRS agent's apartment. In
the presence of Casper, Jaffe, and an IRS photocopying expert, an IRS
expert locksmith made a key to open the briefcase. The plan worked to
perfection: Casper, Jaffe and the photocopying expert copied over four
hundred documents before Casper relocked the briefcase and returned it to
Kennedy's apartment prior to Wolstencroft's return." The IRS paid
Casper $8,000 for his services, and Casper in turn paid Kennedy approximately $1,000 for hers.34
Although the Supreme Court overturned the two lower court decisions excluding the evidence and held that the evidence could be introduced
against Payner, whose fourth amendment rights were not violated, there is
language in the Court's opinion which a diligent police officer could read as
disapproving the procedures employed by the IRS. Specifically, the Court
stated: "We certainly can understand the District Court's commendable
desire to deter deliberate intrusions into the privacy of persons who are
unlikely to become criminal defendants in a criminal prosecution. . . .No
court should condone the unconstitutional and possibly criminal behavior
of those who planned and executed this 'briefcase caper.' "5 Even more
pointedly, Chief Justice Burger, in his concurring opinion, stated: "I agree
fully with the Court that the exclusionary rule is inapplicable to a case of
this kind, but that should not be read as condoning the conduct of the IRS
'private investigators' as disclosed by this record, or as approval of their
evidence-gathering methods."3 6
The Court knows, however, that its actions speak louder than its
words. While reinstating Payner's conviction, the Court was very much
aware that no disciplinary actions had been taken against those responsible
for the "briefcase caper,"3 and that such corrective measures as were
taken could not prevent a similar incident in the future.3 8 More impor33. Payner,434 F. Supp. at 120. In addition to these documents, Casper, pursuant to
Jaffe's request for more information, sent Kennedy to visit Wolstencroft in the Bahamas,
during which visit Kennedy stole a rolodex file from Wolstencroft's office. Id. Nothing from
the file was used against Payner. Id. at 123 n.56.
34. Id. at 120.
35. 447 U.S. at 733 (citation and footnote omitted).
36. Id. at 737-38 (Burger, C.J., concurring).
37. Id. at 750 n.16 (Marshall, J., dissenting).
38. The Court described the measures adopted by the IRS as "less positive than one
might expect from an agency charged with upholding the law ..
" Id. at 733 n.5.
Although it refused to "assume that similar lawless conduct, if brought to the attention of
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tantly, the Court's precise reason for reinstating Payner's conviction was
that the use of the evidence was more important than deterring bad faith
violations. The Court bluntly stated that "[tihe District Court erred,
therefore, when it concluded that 'society's interest in deterring [bad faith]
conduct by exclusion outweigh[s] society's interest in furnishing the trier
of fact with all relevant evidence.' '39
The message for police could hardly be clearer. Noncriminal friends
or relatives of organized criminals frequently possess property which may
in some way inculpate the organized criminal. The police have little to lose
by regularly searching such noncriminals. If they find evidence implicating
the organized criminal, it will be admissible against him. If they do not, no
harm is done except for the short waste of time occasioned by the fruitless
search. While an innocent citizen may have his fourth amendment rights
violated, that is not the police officer's problem.40 Thus, it seems clear from
Rakas, Salvucci, Rawlings, and Paynerthat the fourth amendment need
not be taken seriously when seeking evidence to be used against third
parties.
Suppose the police officer wants to pursue the organized criminal
directly. Does he then not necessarily have to take the fourth amendment
seriously? Several cases suggest he does not. These cases indicate that the
Court will not allow the fourth amendment to impede the police significantly in their search for evidence. No cases illustrate this better than those
which have upheld searches based on what the Court calls "voluntary"
consent.
In the leading case, Schneckloth v. Bustamonte,41 the Court upheld a
consensual search of an automobile whose occupants neither knew nor
were informed of their right to withhold consent. The "voluntary" consent
occurred when a police officer stopped the car, which was occupied by
responsible officials, would not be dealt with appropriately," id., the Court did not predicate
its decision on the accuracy of its assumption.
39. Id. at 736-37 (quoting 434 F. Supp. at 135).
40. Although theoretically a police officer is subject to either a tort or civil rights suit,
as a practical matter damages are not likely to be high enough to encourage filing such a
suit. See. e.g., Magnett v. Pelletier, 488 F.2d 33 (1 st Cir. 1973) (award of $500 could not be
regarded as nominal damages). Furthermore, if the police department approves these
procedures, the department is likely to pay any damages as part of its cost of catching
criminals. See infra note 110. Finally, the police can minimize damages by not doing
anything to aggravate the unlawful search and seizure such as humiliating the searchee.
Candor does suggest, however, that not all police officers will take advantage of the
opportunity to minimize damages. See Monroe v. Pape, 365 U.S. 167, 169 (1961)
(complaint alleged that police officers broke into petitioners' home, routed them from bed,
and made them stand, naked, in the living room while ransacking the home).
41. 412 U.S. 218 (1973).
1985]
FOURTH AMENDMENT
Bustamonte and five other men."' After stopping the car for defective lights
at 2:40 a.m., the police officer asked all six occupants to leave the car; he
also received aid from two additional police officers who had come upon the
scene.4 3 The police officer then asked for and received "voluntary" consent
to search the car from one of the occupants, who was not aware that he
could refuse."' Evidence was discovered that was used to convict Bustamonte of possessing a check with intent to defraud.4 The Court held that
the State is not required to demonstrate a defendant's knowledge of his
right to refuse consent in establishing that the defendant voluntarily
consented to a search." While Bustamonte was limited to noncustodial
situations, 47 a subsequent case, United States v. Watson" upheld the
"voluntary" consent of one who had lawfully been arrested and consented
while in custody, not knowing that he had the right to refuse. 49
Another of Bustamonte's progeny that should delight the hearts of
police officers dedicated to obtaining evidence at all costs is UnitedStates v.
Mendenhall. 0 The Court upheld Mendenhall's conviction for possession
of heroin, evidence of which had been challenged on the ground that it had
been obtained through an unconstitutional search and seizure.5 1 A federal
Drug Enforcement Administration (DEA) agent had requested Mendenhall, a young black woman, disembarking from a flight at the Detroit
42. Id. at 220.
43. Id.
44. Id. The man, Joe Alcala, had been the only one of the six men to produce a driver's
license. He explained that the car belonged to his brother. Id.
45. Id. at 220-21. Upon searching the vehicle, the police officer found three checks
that had previously been stolen from a car wash wadded up under the rear seat. Id. at 220.
46. Id. at 248-49. While the Court stated that due process requires that consent be
voluntary, the question of voluntariness is to be determined in accordance with all the facts
and circumstances surrounding consent. Id. at 226-27. Knowledge of the right to refuse
consent may be considered in this "totality of circumstances," but it is not a prerequisite to
establishing a voluntary consent. Id. at 227.
47. Id. at 248.
48. 423 U.S. 411 (1976).
49. Id. at 424-25. Watson was arrested inside a restaurant for possession of stolen
credit cards. He was taken out to the street, where he was given Mirandawarnings. When a
search revealed no credit cards on Watson's person, a postal inspector asked Watson if he
could search his car. Watson consented, even though the inspector reportedly advised him
that any evidence found could be used against him. Id. at 412-13. Relying on the Court's
holding in Schneckloth, the Court found that Watson's consent was voluntary; the facts of
arrest and the failure to inform Watson of his right to refuse consent were not sufficient to
show illegal coercion. Id. at 424-25.
50. 446 U.S. 544 (1980).
51. Id. at 549-50. The district court denied Mendenhall's motion to suppress, finding
that she had accompanied the DEA agents voluntarily, consented to a search, and was not
arrested until after the search. Id. at 549. The court of appeals reversed, finding that there
was not a valid consent. Id. at 549-50.
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Airport, to accompany him to the DEA office in the airport.52 The agent did
not have probable cause to suspect Mendenhall of any wrongdoing. 53 A
strip search of Mendenhall was conducted after she purportedly consented
to the search, and narcotics were found as a result of the search. 54 Although
the agent testified that he would not have released Mendenhall to catch her
connecting flight if she had refused to consent to the search,55 the Court
upheld this "voluntary" consent, evidently on the theory that a reasonable
person would not have felt compelled to consent.50
As promising as "voluntary" consent searches appear for the diligent
police officer, there is a problem with relying on them to incriminate the
leaders of organized crime. Such leaders are generally more sophisticated
than the high school dropout in Mendenhall or the lone defrauder in
Watson or the frightend young men stopped by the side of the road in
Bustamonte. An organized crime leader with something to hide would
simply refuse to consent, even if it meant missing his plane or being
arrested. Consequently, the police can count on consent searches for only
lone criminals and lower echelon unsophisticated organized criminals.
Fortunately, the Supreme Court has upheld several practices that are
better suited for obtaining evidence from the leaders of organized crime.
One of the most promising is the "open fields" exception to the fourth
amendment, upheld by Oliver v. United States.5 7 Before focusing on the
utility of the "open fields" doctrine in incriminating organized crime
52. Id. at 547-48. The agent testified that Mendenhall fit the so-called "drug courier
profile:" she was arriving on a flight from Los Angeles, she was the last to disembark, she
appeared very nervous, she did not claim any baggage, and she changed airlines for her
flight from Detroit. Id. at 547 n.l.
53. The government conceded that it did not have probable cause to believe that
Mendenhall was carrying narcotics when she was searched. Id. at 550-51.
54. Id. at 548-59.
55. 446 U.S. at 576 & n.13 (White, J., dissenting).
56. On the issue of whether Mendenhall had been seized when she accompanied the
agent to the DEA office, Justice Stewart's plurality opinion stated:
We conclude that a person has been "seized" within the meaning of the Fourth
Amendment only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave. . . . [T]he
subjective intention of the DEA Agent in this case to detain the respondent, had she
attempted to leave, is irrelevant except insofar as that may have been conveyed to
the respondent.
Id. at 554 & n.6. Thus, consent to search could have been held "voluntary" even if (as she
may well have) Mendenhall rightly believed that she could not leave without consenting to a
strip search.
57. 104 S. Ct. 1735 (1984). In Oliver, police went to Oliver's farm after receiving
reports of marijuana being grown on the farm. They drove past petitioner's home and
walked around a gate with a "No Trespassing" sign. Over a mile from Oliver's home, they
found a field of marijuana. Id. at 1738.
19851
FOURTH AMENDMENT
leaders, it is necessary to explain the scope of Oliver.One would hardly be
surprised to learn that a police officer or other individual can enter an open
unfenced field or bucolic meadow. People enter such open places all the
time, secure in the belief that they are not trespassing upon anyone's rights.
Should a police officer enter such a place, few would doubt the propriety of
his seizing any evidence within "plain view.""
The Oliver Court's concept of open fields, however, is not so limited.
The Court held that "[a]n open field need be neither 'open' nor a 'field' as
those terms are used in common speech."" Instead, it defined "open fields"
as "includ[ing] any unoccupied or undeveloped area outside of the
curtilage." 60 In so holding, the Court rejected Oliver's argument that the
question of fourth amendment protection should depend on whether the
landowner took reasonable steps to preserve his privacy. 6 The Court
explained that under such an approach "police officers would have to guess
before every search whether landowners had erected fences sufficiently
high, posted a sufficient number of warning signs, or located contraband in
an area sufficiently secluded to establish a right of privacy." 62 Obviously
the Court could not impose such a terrible burden on law enforcement,
since such a burden might cause some police officers to be over-cautious
and err on the side of obtaining a warrant rather than conducting a search
on their own whim. Consequently, even the thick woods, fence, locked gate,
and "no trespassing" signs found in Oliver and its companion case 63 were
not sufficient to grant fourth amendment protection to those "open fields."
In terms of crime fighting potential, it is important that the diligent
police officer be aware of the full impact of this decision. It does not merely
hold that police must adhere to watered down fourth amendment standards such as searching without a warrant but with probable cause,6 4 or
58. Cf.Texas v. Brown, 460 U.S 730 (1983); Coolidge v. New Hampshire, 403 U.S.
443 (1971) ("plain view" doctrine).
59. 104 S. Ct. at 1742 n.ll.
60. Id. While defining curtilage as "the land immediately surrounding and associated
with the home," id. at 1742, and "the area to which extends the intimate activity associated
with the 'sanctity of a man's home and the privacies of fife,' "id., the Court intentionally left
open what it called "the scope of the curtilage exception to the open fields doctrine." Id. at
1742 n.I I.
61. Id.
62. Id. at 1742-43.
63. Maine v. Thornton, 104 S. Ct. 1735 (1984), in which police, acting upon an
anonymous tip, entered the woods behind Thornton's residence and followed a footpath
until they reached two marijuana patches. Id. at 1739.
64. See, e.g., United States v. Ross, 456 U.S. 798 (1982) (warrantless search of
automobile is permitted only when there is probable cause to search for evidence therein).
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without probable cause, but with reasonable suspicion.ea Rather, it holds
that since "open fields" are neither persons, houses, papers, nor effects,
"the government's intrusion upon the open fields is not one of those
'unreasonable searches' proscribed by the text of the Fourth Amendment." ' Consequently, under the Court's view of fourth amendment
protection, the police may not only contravene local trespass laws, but may
conduct carte blanche searches in every "open field" throughout this
67
nation.
To the extent that organized crime leaders own large tracts of
undeveloped or unoccupied lands, the message for diligent police officers is
clear. If the land contains an airfield that the police believe may be used for
smuggling contraband, they may hide men on the premises. Anything they
see in plain view from their hiding places will be admissible. 8 If they
believe the suspected organized crime leader meets with his associates in
crime on these "open fields," the police can maintain a secret presence,
indefinitely if they so desire. The Court obviously views any threat to the
fourth amendment from such practices as too insignificant to warrant
protection.
Another area in which the fourth amendment need not be taken
seriously is that of automobile searches. It is, of course, black letter law that
the police may stop and search an automobile without a warrant. 9 This
power extends to searches conducted in a private police garage after the
vehicle has been immobilized and the police have had time to obtain a
warrant.7 0 Generally, it extends even to containers found in the automo65. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (search permitted where officer has
reasonable belief that person is armed and dangerous, regardless of whether he has probable
cause to arrest that person for a crime).
66. Oliver, 104 S.Ct. at 1740. While the Court emphasized that protections against
unreasonable seizures would apply even in "open fields," id. at 1741 n. 10, that should not
limit the diligent police officer. For example, if the officer thinks that a bank's stolen money
may be hidden under a lovely patch of flowers in an "open field," he may dig up the flowers
and, if he finds a bag with the bank's name on it, he may of course seize it since he found it in
plain view in a place where he had a right to be. Cf Texas v. Brown, 460 U.S. 730 (1983)
("plainview" doctrine). Should he find nothing, however, he can rest assured in the
knowledge that his precipitous destruction of the flowers was not a violation of the fourth
amendment.
67. Oliver, 104 S.Ct. at 1742. There may be, at least theoretically, other remedies,
such as an action for invasion of privacy. See supra note 40.
68. See State v. Brady, 406 So. 2d 1093 (Fla. 1981) (expectation of privacy in field
surrounded by dike), vacated, 104 S.Ct. 2380 (1984) (remanded for further consideration
in light of Oliver).
69. Carroll v. United States, 267 U.S. 152 (1925) (permitting warrantless search of
movable automobile upon probable cause).
70. Chambers v. Maroney, 399 U.S. 42 (1970) (because there would have been
probable cause to search vehicle when it was stopped, probable cause still obtained in search
19851
FOURTH AMENDMENT
bile.7 1 There is one unfortunate limitation, however; the police officer must
have probable cause to search. Although probable cause means no more
than "fair probability,"7 2 and may mean no more than "good faith belief'
that there is a "fair probability," 7 some police officers may prefer not to
worry about such legal niceties.
There is a solution for these police officers. The Court has held that a
police officer may use a flashlight to look into an automobile that is either
parked or lawfully stopped. 4 Organized criminals, like other citizens,
sometimes park their cars in public garages or parking lots. Because the
public can look through the windows of these cars, so may a police officer.
Such activity might be especially fruitful at night with a flashlight, because
the car owner would probably assume that no one would be able to see
inside his darkened car at night, and consequently might leave some
private item or evidence of crime within view.
If a police officer needs to look further, he can follow a car (preferably
in an unmarked car) and stop the driver when the driver violates some
traffic law. Unquestionably the police officer can shine his flashlight in the
glove compartment while the driver looks for the registration card. 75 He
may even be able to effect a full custodial arrest.76 If so, he can search the
entire passenger compartment of the vehicle, including every container
found therein.
A different kind of vehicular search likely to be quite effective against
organized criminals is suggested by United States v. Villamonte-Marat police station).
7 1. See, e.g., United States v. Ross, 456 U.S. 798 (1982); cf.Castleberry v. Oklahoma,
53 U.S.L.W. 4450 (1985) (per curiam 4-4 decision on the scope of Ross).
72. Illinois v. Gates, 462 U.S. 213, 246 (1983).
73. Cf. United States v. Leon, 104 S. Ct. 3405, 3421 (1984) (holding the standard of
"objective good faith" applicable to a search conducted with a warrant).
74. See Texas v. Brown, 460 U.S. 730 (1983):
It is . . . beyond dispute that [the officer's] action in shining his flashlight to
illuminate the interior of Brown's car trenched upon no right secured to the latter by
the Fourth Amendment. . . . Numerous other courts have agreed that the use of
artificial means to illuminate a darkened area simply does not constitute a search,
and thus triggers no Fourth Amendment protection.
Id. at 739-40 (citations omitted).
75. See id.
76. See United States v. Franklin, 728 F.2d 994 (8th Cir. 1984) (arrest and search
incident to arrest constitutionally permissible where Franklin was observed violating traffic
regulations and failed to explain adequately the absence of state license plates and
registration); cf. Gustafson v. Florida, 414 U.S. 260 (1973) (search of driver upheld as
search incident to arrest for non-possession of driver's license).
77. New York v. Belton, 453 U.S. 454 (1981) (where there is lawful custodial arrest,
officer can search automobile passenger compartment as incident to arrest).
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quez 7 8 which upheld the suspicionless 7 9 boarding of a vessel pursuant to a
statute which provides that "any officer of the customs may any time go on
board any vessel. . . at any place in the United States. . .and examine
the manifest and other documents and papers. . . and to that end may hail
and stop such vessel and use all necessary force to compel compliance." 80
Purporting to board the vessel for a manifest check, the customs officer,
accompanied by an officer of the Louisiana State Patrol, claimed to smell
burning marijuana, went below deck and found the marijuana. 81 The
Court held that boarding the vessel in hope of finding evidence would not
invalidate the search.8 2 An officer wishing to insure access to the private
areas of a vessel could accept the statutory invitation to visit at a less
convenient time, such as 3:00 a.m., when he could be confident that the
occupants would be below deck sleeping. Not only would he be more likely
to see private and possibly incriminating items on board, but the occupants
would probably be too sleepy to preserve their privacy. Because organized
crime leaders are frequently wealthy enough to own large houseboats that
this may be a particularly attractive type of
can be used for smuggling,
83
search to undertake.
The above instances of the Court's reluctance to take the fourth
amendment seriously obviously are not exhaustive. However, not all such
78. 462 U.S. 579 (1983).
79. Whether the boarding was actually suspicionless is debatable. However, the
opinion was predicated on the assumption that it was suspicionless. Id. at 581.
80. 19 U.S.C. § 1581(a) (1982).
81. 462 U.S. at 582-83. Customs officers were patrolling the Calcasieu River Ship
Channel, when they saw respondents' sailboat being rocked violently by the wake of a large
freighter. Sighting one of the respondents on deck, an officer asked the respondent if the
boat and crew were all right. The respondent shrugged in an unresponsive manner. The
officers then boarded the vessel and asked for documentation. Id.
82. Id. at 593. The Court specifically rejected Villamonte-Marquez's argument that
because the customs officers were accompanied by a Louisiana State Trooper and were
acting upon a tip that a vessel may be carrying marijuana, they could not board for a
suspicionless license inspection. The Court declared: "we would see little logic in
sanctioning such examinations of ordinary, unsuspect vessels but forbidding them in the
case of suspected smugglers." Id. at 584 n.3 (quoting United States v. Arra, 630 F.2d 836,
846 (1st Cir. 1980)).
83. While it is theoretically possible to argue that the Court might not sustain an
"after-hours" search since the search in Villamonte-Marquez was at midday, and the
Court emphasized that the intrusion was modest, a diligent police officer probably need not
worry about such a possibility since much of the Court's opinion was predicated upon the
statute's "impressive historical pedigree." Villamonte-Marquez, 462 U.S. at 592. Should
the Court decide that the "impressive historic pedigree" does not apply to the "at any time"
provision of the statute, the diligent police officer can nevertheless search a suspected
criminal's vessel by boarding it at a time of the day when he believes the occupants will be
below deck, such as lunch time.
1985]
FOURTH AMENDMENT
instances are particularly helpful in fighting organized crime. For example, Immigration and NaturalizationService v. Delgado,8 4 which upheld
the Immigration and Naturalization Service (INS) practice of stationing
its agents at factory exits where other agents sought to question employees
about their citizenship, may frighten both illegal aliens and American
citizens of Mexican ancestry, but does little for those fighting organized
crime. On the other hand, Immigration and NaturalizationService v.
Lopez-Mendoza's8 5 holding that the exclusionary rule does not apply to
deportation proceedings86 might assist the police in their efforts to cleanse
us of organized crime. When a police officer suspects that an alien is
involved in crime, organized or not, he can search him, and if he finds
evidence of his criminal involvement he can turn that evidence over to the
7
INS for use in a deportation proceeding .
Thus, it is apparent that a police officer determined not to take the
fourth amendment seriously in his pursuit of organized criminals has
ample opportunity to so conduct himself. The remaining question is
whether it is sound policy for him to do so.
II
In ascertaining whether a diligent police officer should accept the
Supreme Court's invitation to stop taking the fourth amendment seriously,
it is necessary to analyze the purpose of the fourth amendment, the role of
the police officer, and the costs and benefits occasioned by acceptance as
opposed to rejection of the invitation.
The purpose of the fourth amendment is to strike a balance between
the citizenry's right to be free from undue police intrusions and its need to
have crime solved efficiently. 88 Toward that end, the amendment forbids
84. 104 S. Ct. 1758 (1984).
85. 104 S.Ct. 3479 (1984).
86. Id. at 3490. The Court stated that the costs of applying the exclusionary rule in the
context of deportation hearings are high, and the deterrent value small, as the INS had
taken reasonable measures to deter fourth amendment violations by its officers. Id.
87. One could argue that Lopez-Mendoza involved direct evidence of illegal alienage
which is different from the hypothetical involving criminal, and hence deportable, conduct
by an alien. The Court, however, is unlikely to hold the latter subject to the exclusionary rule
while exempting the former. In both cases, the deportation proceeding is civil. The LopezMendoza Court, citing United States v. Janis, 428 U.S. 433, 447 (1976), emphasized that
"the court never has applied [the exclusionary rule] to exclude evidence from a civil
proceeding, federal or state." 104 S. Ct. at 3486. Indeed, since the INS agents regularly try
to obtain evidence for deportation proceedings, whereas state or federal police officers do so
only occasionally, there may actually be less reason to invoke the exclusionary rule in the
hypothetical than there was in Lopez-Mendoza.
88. See Loewy, Protecting Citizensfrom Cops and Crooks: An Assessment of the
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unreasonable searches, but implicitly permits reasonable ones. One type of
search that traditionally has been held unreasonable is that in which the
probability of finding the sought-after evidence is so low that the burden on
a probably innocent searchee is not justified. Such a search is said to lack
probable cause 89 or reasonable suspicion. 10 Another type of search traditionally disallowed is the warrantless search, that is, one that has not been
approved in advance by an independent and neutral magistrate. This type
of search is disallowed because of the "unjustifiably high risk that one
'engaged in the often competitive enterprise of ferreting out crime (such as
a policeman)' will subject an innocent person to a search or seizure."9 1
To the extent that the fourth amendment is his sole guide, a good case
can be made for the diligent police officer's rejecting the Supreme Court's
invitation to stop taking the fourth amendment seriously. After all, the
police officer is theoretically concerned with the privacy of innocent
citizens. Thus, a case could be made for not arbitrarily searching innocent
third parties in hope of finding evidence against another, or randomly
tearing down fences and "no trespassing" signs before trampling through
what the Court calls "open fields." However, there is another factor. Some
police departments reward their police officers more for the evidence they
obtain and criminals they capture than for the privacy they preserve.
Consider the following scenario involving a police captain and two officers:
Captain: Officer A, what did you do last month?
Officer A: Last month while on duty I saw thirty heavily wooded fenced-in
areas with "no trespassing" signs. Because they sought privacy, I was
somewhat concerned that they might be growing marijuana. So I blasted a
hole in each fence, like the Supreme Court said I could, and carefully
searched the whole fenced-in area. Fortunately, things were slow last
month, so I had plenty of time for these operations.
Captain: Did you find anything?
Officer A: I sure did. In two of the thirty fields, I found marijuana growing.
One of them even turned out to be owned by an organized crime leader. I
think that we're going to be able to put him away.
Captain: What about the other twenty-eight?
Supreme Court's Interpretation of the Fourth Amendment During the 1982 Term, 62
N.C.L. REV. 329, 330 (1984).
89. Florida v. Royer, 460 U.S. 491, 507 (1983) (search of luggage invalidated because
probable cause was lacking).
90. Cf. Brown v. Texas, 443 U.S. 47, 51-52 (1979) (absent reasonable suspicion,
defendant cannot be convicted of refusing to identify himself).
91. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81
MICH. L. REV. 1229, 1230 (1983), quoting Johnson v. United States, 333 U.S. 10, 14
(1948).
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FOURTH AMENDMENT
Officer A: Well in twenty of them, I found nothing. Except for the hole in
the fence, nobody would even know I was there. In two other searches, I
found couples making love. Unfortunately, they were married, so I couldn't
arrest them. 92 In three other searches, I found people meeting at a hideout
that they had hoped to keep secret. In another search, I found a group of
scientists conducting experiments that they had hoped to keep secret. In
the remaining two searches, I just found the owners seeking peace and
repose in their woods. I don't think they minded my being there, especially
since they couldn't do anything about it.
Captain: Officer B, what did you do last month?
Officer B: I also saw thirty heavily wooded fenced-in areas with "no
trespassing" signs. I figured that while one or two of these areas might
contain evidence of crime, most would not. Since the owners obviously
sought privacy, and since most were innocent and had no outward indicia of
guilt, I decided to respect their privacy and not search any of them.
Consequently, I have neither made any arrests nor uncovered any evidence
this month.
Each police officer reading this article can of course determine for
himself whether his department would be more pleased with the performance of Officer A or Officer B. To the extent that I am correct, however, in
thinking that most police departments would reward Officer A's performance more than Officer B's, there is a powerful incentive for a police officer
to join the Supreme Court in not taking the fourth amendment seriously.
Before deciding to accept the Supreme Court's invitation in toto, the
diligent police officer should consider potential tort liability. Fortunately,
some of the opportunities for not taking the fourth amendment seriously do
not involve a risk of tort liability. The police officer who shines a light into
every car in a public parking lot need not fear liability because he has not
committed any tort. He has simply viewed that which the car owner has
exposed to the public. Similarly, the customs official who accepts the
statutory invitation to board a vessel "at any time" is merely doing what a
constitutional statute authorized him to do. Finally, the police officer who
obtains "voluntary" consent from an automobile or airline traveller cannot
be sued precisely because the person has consented.
Other cases, however, are not so easy. In the above hypothetical,
Officer A has probably committed a trespass in violation of local law. 93 He
probably would be liable for the holes he blasted in the fences and possibly
92. Cf Griswold v. Connecticut, 381 U.S. 479 (1965) (presumably "marital privacy"
inheres in a fenced-in "open field," laden with "no trespassing" signs).
93. See, e.g., Ky. REV. STAT. § 511.070, .080, .090(4) (1985); ME. REV. STAT. ANN.
tit. 17A, § 402(l)(c) (1983).
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for the privacy he invaded in several of the other cases. There are, of course,
several things that the diligent police officer can do to minimize damages.
He could try not to damage the fence. When possible, he could vault over it
instead of destroying it. In that event, the owner might not even learn that
his privacy had been violated. When total nondestruction is impossible, the
police officer could cut a small portion of the fence rather than blasting it.
He could then repair the fence when he was finished. Surely any tort
damages would be nominal.94 Finally, he could clear the project with his
superiors in advance and in the process have the Department agree to
indemnify him from any tort liability.
The Rakas,95 Salvucci,96 Rawlings,97 and Payner98 series has the
potential to create tort liability, but should not significantly influence the
diligent police officer if he properly handles the situations. Rakas,
Salvucci, and Rawlings involved a search of an automobile, an apartment,
and a purse, respectively. In each case, if the police officer intrudes no more
than is necessary to conduct the search, the damages are not likely to be
substantial.9 9 Indeed, only the Salvucci situation (involving the search of
an apartment) presents any chance that a careless police officer is likely to
cause enough damage to render a lawsuit economically feasible for the
victimized searchee. Surely, the potential tort liability for searching the
purse is not likely to deter a diligent police officer from unlawfully
searching a purse in which he hopes to find evidence against someone other
than the owner.
The Payner situation is even less likely to result in tort liability. The
clandestine nature of the operation, coupled with the return of the briefcase
and papers before Mr. Wolstencroft even knew they were missing, makes it
unlikely that he would ever have known that his privacy had been invaded.
Indeed, unless a clandestine theft or burglary is handled like the Watergate
affair, 10 0 the diligent police officer need not fear tort liability. In any event,
the police department may find it cost effective to encourage the illegality
and, if caught, pay the damages. For example, in Payner, the IRS surely
would expect to gain far more revenue from its blatant illegalities than it
94.
95.
96.
97.
98.
See
439
448
448
447
Magnett v. Pelletier, 488 F.2d 33 (1st Cir. 1973).
U.S. 128 (1978). See supra notes 6-12 and accompanying text.
U.S. 83 (1980). See supra notes 15-19 and accompanying text.
U.S 98 (1980). See supra notes 20-27 and accompanying text.
U.S. 727 (1980). See supra notes 28-39 and accompanying text.
99. See supra note 40.
100. See generally CONGRESSIONAL
CRISIS
1973).
QUARTERLY, WATERGATE: CHRONOLOGY OF A
(1973) (describing Watergate crisis from June 17, 1972 break-in to August 15,
1985]
FOURTH AMENDMENT
would have to pay in damages for them.1"'
The remaining argument against such practices as randomly shining
lights in parked cars, disregarding "no trespassing" signs, and arbitrarily
searching innocent people to try to find evidence against their guilty
acquaintances, is that these practices create bad police-citizen relationships. On balance, however, this should not deter the diligent police officer.
Unless a given police department has some unusual bad luck, these
practices should increase the number of solved crimes, and the number of
convicted criminals, including organized criminals. Even an unlucky police
officer should be able to find something criminal in at least one out of every
hundred of these exercises. Surely the populace can be soothed by the
knowledge that their diminished expectation of privacy has resulted in a
more efficient police force and more convictions of organized criminals.
Those who, at first blush, might analogize this trade-off to the practices of a
totalitarian government's police forces can rest assured with the knowledge
that while our police forces may have similar powers, our government is
democratic, and theirs is totalitarian.
III
This Article has established that the Supreme Court does not require
the police to take the fourth amendment seriously, and that sound policy
(plus a little self interest) suggests that the police should not take it
seriously. Although the cases discussed in this article seem to establish the
first proposition beyond peradventure, candor compels the disclosure that
the Court occasionally renders a decision suggesting that maybe the fourth
amendment is to be taken seriously after all. For example, in Floridav.
Royer,10 2 the Court invalidated the arrest and subsequent search of a
nervous young traveller, flying from Florida to New York, notwithstanding
the Court's determination that the police had reasonable suspicion to
101. According to Judge (formerly Professor) Richard Posner (who analyzes violations of the fourth amendment in terms of economic cost, balancing the value of the
information gained against the "clean up" costs to the victims), it would be economically
unsound for the government not to conduct the unlawful search in a case similar to Payner.
He thus criticizes the exclusionary rule for over-deterring, since it would discourage such a
search and encourage economic inefficiency. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 WASH. L. REV. 635, 638-40 (1982). While some
disagree with Posner and believe that the value of taking the fourth amendment seriously is
greater than the penalty of tort damages typically imposed upon those who violate the
fourth amendment, see, e.g., Morris, The Exclusionary Rule, Deterrence and Posner's
Economic Analysis of Law, 57 WASH. L. REv. 647 (1982), those views need not concern the
diligent police officer, who is not bound by them and who does have an obligation to please
his superior officers.
102. 460 U.S. 491 (1983).
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detain him. 108 In language that appeared to accord the fourth amendment
considerable esteem, the Court said: "We cannot agree with the State...
that every nervous young man paying cash for a ticket to New York City
under an assumed name and carrying two heavy American Tourister bags
may be arrested and held to answer for a serious felony charge."1 ' In this
same vein, the Court in United States v. Place05 invalidated a ninetyminute detention of an airplane traveller's luggage because of the burden
such a detention could impose on an innocent traveller.10 6
Although cases such as Royer and Place may confuse the diligent
police officer, they should not deter him. These cases, while perhaps not
"derelict[s] on the waters of the law," 107 certainly are not in the
mainstream. 08 Even in a Royer or Place situation, it may pay to conduct
103. Id. at 502.
104. Id. at 507.
105. 462 U.S. 696 (1983).
106. Id. at 709-10.
107. Lambert v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting).
108. The Court invalidated a conviction because of the fourth amendment in only two
other cases during the past two terms (1982 and 1983). Both Michigan v. Clifford, 104 S.
Ct. 641 (1984) and Welsh v. Wisconsin, 104 S. Ct. 2091 (1984) involved a warrantless
search of a home. In Clifford, the Cliffords' private residence was damaged by fire while the
Cliffords were out of town. Five hours after the blaze was extinguished, a team of arson
investigators conducted a warrantless search of the home, despite actions being taken by the
Cliffords' insurance agent to secure the house. Clifford, 104 S. Ct. at 644-45. The Court
held the evidence of arson obtained as a result of the search was inadmissible, since the
Cliffords' privacy interest made the five-hour delay in searching unreasonable. Id. at 64849. In Welsh, Welsh's vehicle was observed being driven erratically and finally stopping in a
field. Police proceeded to his home and gained entry. He was arrested and taken to the police
station, where he refused to submit to a breatholizer test. Welsh, 104 S. Ct. at 2093-94. The
Court held that the entry of Welsh's home was prohibited by the fourth amendment, since it
could be justified by neither the "exigent circumstances" exception nor the "hot pursuit"
doctrine. Id. at 2097-100. Evidently, the Court does want to see the fourth amendment
taken seriously in the context of the search of a home. See also Steagald v. United States,
451 U.S. 204 (1981) and Payton v. New York, 445 U.S. 573 (1980); but cf Segura v.
United States, 104 S. Ct. 3380 (1984) (apartment entered by officers to arrest suspect, and
officers remained in apartment until search warrant could be issued; held, evidence obtained
as result of initial security check upon arrest of suspect and evidence obtained as result of
search conducted under warrant was admissible).
In contrast to the four cases (Royer, Place, Clifford and Welsh) upholding fourth
amendment claims during the 1982 and 1983 terms, fourteen have either upheld the police
practice or admitted evidence in spite of it. Immigration and Naturalization Service v.
Lopez-Mendoza, 104 S. Ct. 3479 (1984); Massachusetts v. Sheppard, 104 S. Ct. 3424
(1984); United States v. Leon, 104 S. Ct. 3405 (1984); Segura v. United States, 104 S. Ct.
3380 (1984); Immigration and Naturalization Service v. Delgado, 104 S. Ct. 1758 (1984);
Oliver v. United States, 104 S. Ct. 1735 (1984); United States v. Jacobsen, 104 S. Ct. 1652
(1984); Michigan v. Long, 103 S. Ct. 3469 (1983); Illinois v. Andreas, 103 S. Ct. 3319
(1983); Illinois v. Lafayette, 463 U.S. 640 (1983); United States v. Villamonte-Marquez,
462 U.S. 579 (1983); Illinois v. Gates, 462 U.S. 213 (1983); Texas v. Brown, 460 U.S. 730
19851
FOURTH AMENDMENT
an unlawful search since it could yield admissible evidence against
someone else, perhaps an organized criminal. If the Court really wanted to
discourage such searches, it would not have created the incentive of
allowing the searches to be used against others.
In conclusion, it seems that the Supreme Court's message to the
diligent police officer is this: "When in doubt, search! First, there is a good
chance that we will uphold the search. Second, even if we do not, the search
may yield evidence against someone from whom we will not hear a
challenge. Finally, if all else fails, you can always plead 'good faith.' "109
(1983); United States v. Knotts, 460 U.S. 276 (1983). In most of these cases, the Court
overturned a lower court's reading of the fourth amendment that would have imposed
significantly greater restraints on the police than this Court was willing to tolerate. Indeed,
in Royer and Place,the Court allowed the police substantially more latitude than the lower
court in those cases would have allowed. See Loewy, supra note 88.
109. Cf. United States v. Leon, 104 S. Ct. 3405 (1984) and Massachusetts v.
Sheppard, 104 S. Ct. 3424 (1984) (allowing presumptively unconstitutionally obtained
evidence to be introduced because it was obtained in what Court called "objective good
faith," pursuant to warrant issued by magistrate).