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Unreasonable Searches

John Adams said the kernel of what would become art. 14 of the Massachusetts Declaration of Rights and ultimately the Fourth Amendment to the United States Constitution was born as James Otis argued against the Writs of Assistance. This idea that individuals should be free from unreasonable searches and seizures was, and is, foundational to self governance. The Supreme Court of the United States, however, has spent decades narrowing what that principle means in practice.


The Fourth Amendment says, simply,


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.


The question the courts have consistently been asked is the meaning of the term “unreasonable”. And, as with many adjectives, this word can have a variety of meanings depending on the circumstances. Indeed, the requirement to scrutinize, individually, each warrant for its comportment with the words of the Amendment is de rigeur. Motions to suppress routinely parse the “four corners” of affidavits and warrants to ensure that the authorized search was, in fact, "reasonable" within the meaning of the constitutional principle.


The Constitution’s preference for a warrant does not apply in the majority of searches and seizures. The field interrogation that leads to a pat-down, the arrest for a street crime, or the stop of a motor vehicle that escalates into a search of a person occur daily without warrants. Generally, this puts the notion of reasonableness into the practice of policework (which, one may argue, is itself unreasonable, but I digress).


Fifty years ago this week, a case came before the Supreme Court that could have made searches of a person or the general area of control of that person when arrested for a simple motor vehicle infraction more individualized. Or, as it ended up going, with a blanket rule. That rule could have been to prohibit all searches incident to these kinds of arrests without obtaining a warrant or it could have been to allow all searches incident to arrest regardless of the type of arrest, the circumstances of the case, and the likelihood of danger to the police officer. Guess which way it went. Okay, don’t – searches incident to arrest are a free for all.


On December 11, 1973, the Supreme Court decided United States v. Robinson, 414 U.S. 2018 (1973) affirming the validity of all searches incident to arrest. In that case, police pulled Mr. Robinson’s car over. The officer had a recent prior encounter with Mr. Robinson and believed he was driving a car after having his license revoked, a motor vehicle infraction albeit one that was “arrestable”. This belief was based upon probable cause to arrest Mr. Robinson for that offense. After pulling over, Mr. Robinson and the other occupants alighted from the car. The officer arrested Mr. Robinson and conducted a pat frisk. In the course of the pat down, the officer discovered a crumpled up cigarette pack. Upon opening it, the packet contained items the officer believed would test positive for heroin. They, in fact, did test positive for heroin. Because these events happened in the District of Columbia, the case was tried in federal court.


The defendant moved to suppress the fruits of the search and lost. He was convicted at trial. On appeal, the circuit court reversed and the prosecution appealed. This is how the case landed in the Supreme Court of the United States. The issue for the Court was whether the search of the defendant’s person was reasonable within the meaning of the 4th Amendment when there was no fear on the part of the officer, no reason to believe there was a weapon, and no chance that the item the officer felt present in the defendant’s pocket was a weapon. The court mentioned a long litany of cases citing the concept of search incident to arrest, the most recent at that time was Chimel v. California, 395 U.S. 752  (1969) (search incident to arrest covers the area surrounding the suspect within the suspect’s immediate control). The Court determined that the warrantless search of the jacket pocket in Robinson was lawful since probable cause to arrest existed. The great Thurgood Marshall authored the dissenting opinion, joined by Justices Douglas and Brennan.


As Justice Marshall saw it, the jurisprudence of the Court regarding the reasonableness of searches was not a uniform one size fits all approach wherein every single arrest could result in a search. Instead, the history was individualized. He also remarked on one aspect of the majority’s analysis that is intriguing given today’s Court. He noted that the basis for the Court of Appeals’ conclusion that the search violated the Fourth Amendment. And then he commented on the analysis of the Fourth Amendment by the majority versus the reality of the day.

One need not go back to Blackstone’s Commentaries, Holmes’ Common Law, or Pollock & Maitland in search of precedent for the approach adopted by the Court of Appeals. Indeed, given the fact that that mass production of the automobile did not begin until the early decades of the present century, I find it somewhat puzzling that the majority even looks to these sources for guidance on the only question presented in this case: the permissible scope of a search of the person incident to a lawful arrest for violation of a motor vehicle regulation. The fact is that this question has been considered by several state and federal courts, the vast majority of which have held that, absent special circumstances, a police officer has no right to conduct a full search of the person incident to a lawful arrest for violation of a motor vehicle regulation.


U.S. v Robinson,414 U.S. at 244. (take that, originalists!)


Justice Marshall then reviewed a litany of cases regarding lawful traffic stops where courts did not allow vast searches of the individual and the vehicle for anything but weapons. “The majority’s attempt to avoid case-by-case adjudication of Fourth Amendment issues is not only misguided as a matter of principle, but is also doomed to fail as a matter of practical application.” U.S. v. Robinson, 414 U.S. at 248. Justice Marshall declared that the analysis in the case consisted of three separate parts: the patdown of respondent’s coat pocket; the removal of the unknown object from the pocket; and the opening of the crumpled-up cigarette package.


His opinion concludes, U.S. v. Robinson, 414 U.S. at 259 with:


The search conducted by Officer Jenks in this case went far beyond what was reasonably necessary to protect him from harm or to ensure that respondent would not effect an escape from custody. In my view, it therefore fell outside the scope of a properly drawn ‘search incident to arrest’ exception to the Fourth Amendment’s warrant requirement. I would affirm the judgment of the Court of Appeals holding that the fruits of the search should have been suppressed at respondent’s trial.


Imagine a world, perhaps the one imagined by John Adams for our beautiful Massachusetts Constitution and the impetus for the Fourth Amendment, in which it would be unreasonable to manhandle people arrested for a motor vehicle infraction.  Imagine a constitutional principle that required a reason beyond the fact of arrest before a stranger with a gun had the power to frisk a person. It’s the world Justice Marshall envisioned and one that makes pretty good sense.

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