The Court's "Two Model" Approach to the Fourth Amendment: Carpe Diem

Article excerpt

A traveller, lost in a strange city, can occasionally make three wrong turns and find himself on, if not necessarily the right road, at least one that is going in the right direction. Similarly, the United States Supreme Court, lost in the strange city of Fourth Amendment law,(1) has taken three wrong turns, but may yet find itself on a road that, if not "right," in terms of the Court's precedents, is logically defensible and will lead to a much more straightforward rule for police. However, like the traveller, if the Court fails to recognize what it has done, it will be doomed to continue its wayward course. The three wrong turns that the Court has taken are United States v. Robinson(2) (a warrantless search incident to any custodial arrest may be a "full body search," including a search of any containers in the suspect's possession), New York v. Belton(3) (a warrantless search incident to arrest of an occupant of an automobile extends to all containers in the passenger compartment), and California v. Acevedo(4) (warrantless automobile searches may extend to all containers found in the automobile searched).

This Article will discuss why these three cases were wrongly decided according to the Court's logic and precedents. That is, they are flatly inconsistent with the Court's oft-advanced claim that search warrants are ordinarily "required" subject to a "few specifically established and well-delineated exceptions."(5) It will further consider how these decisions will lead (indeed, largely have led) to the complete abandonment of the search warrant requirement for all searches conducted out of doors and will lead to the establishment of a "two model" approach to the Fourth Amendment, with warrants required for searches of structures, but not of other places. It will conclude with a model statute that will capture this new development in a succinct and comprehensible form.(6) This formulation will demonstrate that the Court has, apparently through inadvertence, presented itself with a golden opportunity to render Fourth Amendment law clearer and more straightforward than at any time since the "criminal procedure revolution" began.(7)



In Robinson, the Court's first incorrect decision, a policeman spotted a man, whose driver's license he knew to have been revoked, driving a car.(9) The policeman stopped the car and placed the driver under arrest.(10) The officer then searched the driver incident to the arrest and felt an unknown object in the driver's breast pocket.(11) He then removed the object, a crumpled cigarette package, from the driver's pocket.(12) He opened the package and found gelatin capsules of white powder which later were determined to be heroin.(13)

The Supreme Court upheld the admission of the heroin at the defendant's trial for narcotics possession. The majority, per Justice Rehnquist, held that the Court had long recognized, albeit in dicta, that a "search incident to arrest is a traditional exception to the warrant requirement."(14) The Court further held, though without any prior authority in dicta or otherwise, that such a search includes a "full search" of the arrestee, even where the arrest is for a crime (driving with a revoked permit) for which there is no evidence to be found.(15) Thus, the Court approved the seizure and opening of the cigarette pack, and, apparently, of any other containers found upon arrestees, upon no showing beyond that of a lawful arrest.

Robinson can be criticized on the ground that, even though most would agree that an arrestee should be routinely subject to a patdown for weapons,(16) it does not follow that an evidentiary search may be performed without probable cause that evidence may be found and, possibly, a warrant. Since in Robinson no evidence could have been found for the traffic violation for which the defendant was being arrested, there was no probable cause, much less a warrant. …