Bright Lines on the Road: The Fourth Amendment, the Automatic Companion Rule, the "Automatic Container" Rule, and a New Rule for Drug- or Firearm-Related Traffic Stop Companion Searches Incident to Lawful Arrest
Glandon, Kevin Robert, American Criminal Law Review
INTRODUCTION I. CURRENT LAW, HISTORICAL DEVELOPMENT, AND UNRESOLVED QUESTIONS A. The State of the Law B. History & Development of the Fourth Amendment as It Applies to Automobiles 1. What is a Search? 2. Searches & Seizures: The Requirement of Reasonableness 3. When a Warrant is Not Required 4. Automobile Searches Under the Fourth Amendment C. Inconsistencies & Unresolved Questions II. PATCHING LEGAL POTHOLES IN THE AUTOMOBILE CONTEXT A. Automatic Companion Rule 1. Explaining the Rule 2. Basis of the Rule a. Safety of the Officer and the Public b. A Bright-Line Rule for Law Enforcement c. Common Sense d. Minimal Additional Intrusion 3. Criticism and Defense of the Rule a. It Relies upon Improper Guilt by Association b. It Fails to Require Individualized Suspicion B. Automatic Container Rule 1. Explaining the Rule 2. Basis of the Rule 3. Criticism and Defense of the Rule a. A Passenger's Belongings Cannot Be Searched If They Are Not Independently Subject to Search b. Permitting Warrantless Automobile Searches Is Inaccurate and Inefficient III. BRIDGING THE GAP: A "FIREARMS AND NARCOTICS PASSENGER SEARCH RULE" A. Explaining the Rule B. Basis of the Rule 1. Danger and Destruction 2. A Bright-Line Rule 3. Evidence-Gathering 4. Minimal Additional Intrusion C. Criticism and Defense of the Rule 1. A Search of a Passenger Ought to Require Probable Cause 2. This Rule Would Encourage Pretextual Stops CONCLUSION
For better or for worse, many courts and commentators agree: the Supreme Court has been moving away from contextualized, careful review of intrusions into the Fourth Amendment rights in automobiles. (1) Significant debate and disagreement has resulted in splits among the federal and state courts as to the appropriate limits of law enforcement searches of a passenger's person and belongings where the driver of a vehicle has been arrested and there is no reasonable suspicion that the passenger is involved in criminal activity.
The Supreme Court has carved out significant exceptions to Fourth Amendment warrant and probable cause requirements in the context of automobile searches. The full scope of enforcement authority to search an automobile and its passengers when the driver has been arrested remains uncertain. If an officer arrests the driver of a vehicle based upon either a firearm or drug charge, or finds either of those items during the course of the arrest, can the officer, without more, frisk the passengers for weapons? Can the officer, without more, search a bag that might contain a weapon or narcotics when it is being held by a passenger? Even if the answer to both of the previous questions is "yes," can the officer, without more, search the passengers?
Two state court cases present the Supreme Court with the opportunity to forge new bright-line rules in the dangerous context of roadside stops by providing law enforcement officers greater authority to search automobile passengers and their belongings subsequent to the arrest of the driver of the automobile. In Owens v. Commonwealth (2) and State v. Mercier, (3) traffic stops led to the arrest of a driver and to, respectively, a pat down of a passenger for weapons, and a search of belongings held by a passenger. Through Owens and Mercier, the Court could resolve the disagreement among the courts and support both the "automatic companion" line of reasoning extending from Terry v. Ohio (4) frisks and what one might call an "automatic container" (5) line of reasoning stemming from Wyoming v. Houghton. (6) Yet, while potentially providing a boon to law enforcement, the rules as described in Owens and Mercier might not go far enough. …