Protecting Personal Privacy: Drawing the Line between People and Containers
Bulzomi, Michael J., The FBI Law Enforcement Bulletin
More so today than perhaps at any time in this nation's history, law enforcement officers must be proactive when interacting with individuals in the towns and communities in which they serve. Understanding the full depth of the tools available to ferret out criminal activity and to protect their safety, as well as the safety of others, is critical to law enforcement effectiveness. In the face of this mandate, officers must constrain their actions according to constitutional principles as interpreted by America's judicial system. Critical in the constitutional analysis is the value afforded personal privacy. This article examines the recognition of personal privacy in the context of a regular and potentially valuable, as well as volatile, law enforcement activity--stopping a vehicle and developing probable cause to search it. Officers must be mindful of the scope of their authority and the legal tools within their arsenal. These tools may justify further governmental intrusions, including intrusions into personal privacy, when the officer's initial response reveals additional information.
The Fourth Amendment
The Fourth Amendment to the U.S. Constitution reads as follows: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be vio-lated, 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." (1) The privacy protected by the Fourth Amendment has its origin in the American colonists' battle against British government practices. (2)
These practices included unauthorized general warrants, allowing a virtually unrestricted house search for whatever evidence could be found of interest to the Crown. Such tools provided British officers indiscriminate authority to search people's homes and property. The framers of the Constitution responded to these unreasonable intrusions with the Fourth Amendment. While relatively brief, the language repudiates the concept of a general warrant, requiring the existence of probable cause and a particularized description of the things to seize and the place to search.
The U.S. Supreme Court, in interpreting the language of the Fourth Amendment, engages in a balancing process, weighing the interests of the government in engaging in a search versus the interests of an individual's privacy. The practical impact of this balancing in traditional law enforcement is the presumption in favor of securing a warrant prior to engaging in conduct that would amount to a search under the Fourth Amendment. The Supreme Court has stated that a warrantless search is "per se unreasonable subject to a few specifically established and well-delineated exceptions." (3) The exceptions allow law enforcement officers to bypass the procedures of obtaining a warrant from a judicial officer when there is a determination that a significant government interest in searching without a warrant outweighs the interests of the individual. This significant government interest may include, for example, the need to act to prevent the destruction of evidence or prevent the escape of a dangerous individual.
The Supreme Court recognizes the need for law enforcement to search in the face of an emergency (4) or incident to arrest, (5) following the lawful seizure of property to inventory its contents, (6) based on the voluntary consent of a party who has authority over the property, and pursuant to the motor vehicle exception. (7) This article focuses on the scope of the authority when engaged in the stop of a vehicle and when, during this stop, information is developed leading to a search.
The Motor Vehicle Exception
The motor vehicle exception to the Fourth Amendment, first recognized by the Supreme Court in Carroll v. …