The Fourth Amendment on the Road and at Home

Statement of Susan Herman,
ACLU General Counsel and Professor of Law, Brooklyn Law School

During the 1998 Term, the Supreme Court decided half a dozen Fourth Amendment cases in opinions that did not offer many surprises. For the 1999 Term, the Court has only granted cert. in one Fourth Amendment case, Illinois v. Wardlow (No. 98-1036), but that case could be highly significant in terms of objective limitations on police power.

The case arose when four police cars were “caravanning” through a Chicago neighborhood in the middle of the day, looking for drug activity. Sam Wardlow, who was standing in front of a building, ran away when he saw the cars approach. The officers chased and cornered him and one officer then “frisked” the opaque plastic bag Wardlow was holding and discovered a loaded gun.

Ruling for Wardlow, the Illinois Supreme Court said that “location [in a “high crime” neighborhood] plus evasion” is not enough reason for the police to stop and frisk. Referring to its earlier decision in Morales v. City of Chicago (concerning the anti-gang loitering ordinance the U.S. Supreme Court also found unconstitutional), the court remarked that people in Chicago can hardly know what to do when confronted with the police if they are not allowed to stand still, and not allowed to run away.

Illinois does not challenge an individual’s right to walk away after declining to answer a police officer’s questions; but, it contends, flight from the police gives rise to reasonable suspicion that criminal activity is afoot. The ACLU amicus brief argues first, that, as a plurality of Justices asserted in the Supreme Court Morales decision, 119 S. Ct. 1849 (1999), there is a constitutional right to freedom of movement, second, that it is not possible to draw lines on the basis of “police-approved” methods of avoiding contact with the police, and third, that it does not matter if, as the state argues, most people do not run when they see the police – most people do not assert their right to refuse to consent to police search requests either.

Several years ago, a federal judge’s suppression of evidence in a major narcotics case provoked a firestorm of criticism when he recognized, even before the incidents involving Abner Louima and Amadou Diallo, that some residents of New York City, like some residents of Chicago, might, regrettably, have reason to want to avoid confrontations with the police even if they have not committed any crime. The judge in that case, Harold Baer, subsequently reopened his factual inquiry and found that other suspicious factors justified the police action.

In Wardlow, however, the state courts found the police to have absolutely no reason other than Wardlow’s location and flight to believe that he was committing a crime. The Supreme Court will probably search for other suspicious factors to justify the stop and frisk here, but if the record is as stark as the Illinois courts describe, the Court may not have the option of a compromise ruling. The ACLU amicus brief in this case also stresses the potential impact on minority residents of poor neighborhoods if the Court rules that flight from the police, if coupled with presence in a “high-crime” neighborhood, is enough justification for a stop and frisk.

Recent Fourth Amendment Trends: Agoraphobia and Unanswered Questions

Automobile Searches and Seizures. Four of the six Fourth Amendment cases last Term involved state law enforcement officers searching passenger cars for drugs. The ACLU has been concerned for years about the impact of the so-called war on drugs on Fourth Amendment rights, and these cases are good examples of how the Court has been shrinking the Fourth Amendment to prevent it from impeding the search for drugs.

In three out of four of these cases, the Supreme Court followed its recent trend of expanding the prerogatives of law enforcement officers to search and even seize cars without prior judicial approval. Maryland v. Dyson, 119 S. Ct. 2013 (1999) (per curiam) (automobile exception allows warrantless searches of automobiles even in cases where there is no exigency); Florida v. White, 119 S. Ct. 1555 (1998) (car subject to forfeiture may be seized from a parking lot, without a warrant); Wyoming v. Houghton, 119 S. Ct. 1297 (1999) (probable cause to search vehicle for contraband permits search of passenger’s purse, left on the seat of the car, if the object of the search could have been concealed in the purse). Dyson and White closed the door on Fourth Amendment questions, while Houghton created a need for more lines to be drawn in the future: what if the passenger had removed her purse from the car? May the police frisk passengers who do not carry a bag?

These three cases also have something else in common. In all three, the highest court of a state had found the police behavior in failing to acquire a warrant to be unreasonable. So in all three instances, the Supreme Court reached out to take cases where state law enforcement officials had lost in their own state courts, and then reversed the state courts. (An observer might wonder why the state courts did not insulate their decisions from the Supreme Court’s review by basing their decisions on their own state constitutions. The reason is clear in Florida, at least. In an example of backlash against the use of state constitutions to expand rights, the voters of Florida amended their state constitution over a decade ago to prohibit the Florida Supreme Court from interpreting state search-and-seizure provisions any differently than the Supreme Court’s interpretation of the Fourth Amendment. These cases are interesting twists on the dominant theme of last Term – federalism.)

The fourth automobile case — Knowles v. Iowa, 119 S. Ct. 484 (1998) — also reversed a state court, but here the state had ruled against the defendant, upholding the Iowa law permitting a search of a car incident to arrest, even in the absence of an arrest. The Supreme Court, as urged in an ACLU amicus brief, ruled that the justification for a search incident to arrest does not exist if an individual is issued a traffic citation and is not taken into custody. But Knowles in some ways is a cheap win, because the officer in that case had already decided not to take Knowles into custody when he then announced that he was going to search the car under the Iowa law. Nothing in the Supreme Court’s decision would prevent the officer from arresting Knowles for speeding (as state law empowered him to do), searching the car incident to this arrest, and then, if the search came up empty, changing his mind and letting Knowles go.

Home Searches. While the warrant requirement has become a virtual dead letter with respect to automobiles, the requirement is alive and well when a search takes place in a home. The Fourth Amendment apparently suffers from a form of agoraphobia: it thrives while at home, at least by comparison, but shrivels when it goes outside.

Wilson v. Layne, 119 S. Ct. 1692 (1999), and its companion case Hanlon v. Berger, 119 S. Ct. 1706 (1999), followed recent cases in limiting police prerogatives to choose how to execute warrants in homes. In particular, after Layne, police no longer have free reign to bring the media along when they enter a home to execute a warrant. Charles Wilson and his family– including his four-year-old granddaughter — were awakened at 6:45 a.m. by plainclothes law enforcement officers who burst in with guns drawn, accompanied by a reporter and photographer from The Washington Post. The family was represented in their civil rights action by the ACLU.

Minnesota v. Carter, 119 S. Ct. 469 (1998), on the other hand, expanded a loophole in the protection of the privacy of homes. What remains unclear is how large that loophole actually is. The Court’s holding – that Carter, who was present in a private apartment briefly for the commercial purpose of bagging cocaine, could not claim that his own Fourth Amendment rights had been violated if the police invaded the privacy of the home without a warrant — appears intended by a majority of the Court to be relatively limited.

Five Justices (see Justice Kennedy’s concurring opinion, in addition to the opinions of Ginsburg, Stevens and Souter, and of Breyer) believe that the Fourth Amendment should generally protect “social” (as opposed to “commercial”) guests. Nevertheless, after Carter, the police have more incentive to enter people’s homes without a warrant or even without probable cause, because there is at least some chance that they might be able to use any evidence they might find against some of the occupants.

It is also worth noting that during the oral argument in Carter, the United States conceded that the fact that Carter was performing an illegal activity was not relevant to his Fourth Amendment claim (see Justice Ginsburg’s dissenting opinion). It was the nature of Carter’s relationship to the apartment, and not the illegal nature of his activities, that defeated his claim.

It was partially because of the prospect of discriminatory enforcement that the ACLU argued, in an amicus brief in Whren v. United States, 517 U.S. 806 (1996), that the Fourth Amendment should be held to prohibit pretextual traffic stops. The Court in Whren rejected this argument, and the proliferation of what have come to be sardonically known as “DWB” stops (being stopped for Driving While Black – or Brown) shows that the ACLU was right to fear the abuse of traffic law enforcement, in the service of the war against drugs, against minority drivers. The principle of Whren, still unchecked by the Court, encourages the police to stop motorists in the hope of being able to search their cars for drugs, and even to arrest them in order to be able to perform a full search incident to arrest of their persons and their cars.

After the Knowles case, a lot depends on whether state law gives an officer the discretion to make an arrest, even if just for a traffic offense, because arrest becomes the predicate for a search. Could a state or local government, intent on giving its officers more weapons in the war on drugs, authorize custodial arrest for all speeding violations, for illegal turns, and even illegal parking? If so, the ACLU’s argument that Whren empowers the police to search virtually any driver at all, simply by waiting until they commit a traffic infraction, will turn out to be all too true.

Unanswered Questions. During the 1997 Term, the Court granted cert. in a case that raised the question of whether the Fourth Amendment imposes objective limitations, other than the requirement of probable cause, on the power of a state or local government to use custodial arrest. The petitioner in Ricci v. Arlington Heights (No. 97-501) had been taken into custody for operating a telemarketing business without a license. The Court subsequently dismissed cert. as improvidently granted in that case. (See the ACLU amicus brief in Ricci for an account of the case and the reasons why the arrest should have been considered a violation of the Fourth Amendment.)

Recently, however, a panel of the Fifth Circuit held, in Atwater v. City of Lago Vista, 165 F.3d 380 (Jan. 29, 1999), that a custodial arrest of a “soccer mom” whose children were not wearing seat belts was an unreasonable arrest under the Fourth Amendment, even if it was authorized by local law and based on probable cause. The Fifth Circuit agreed to reconsider the case en banc, 171 F.3d 258 (Mar. 26, 1999). That case could, perhaps next Term, become the vehicle for the Court to address the critical question of whether there are any objective limitations on the power to arrest.