A MODEST PROPOSAL FOR FIGHTINGORGANIZED CRIME: STOP TAKING THEFOURTH AMENDMENT SO SERIOUSLYt

Arnold H. Loewy*

I am grateful to the editors of the Rutgers Law Journal for inviting meto participate in their important symposium on organized crime. ThisArticle addresses the critical prosecutorial problem of obtaining evidencesufficient to convict these purveyors of evil whose misdeeds outrage thepopulace. Much of the difficulty in obtaining this evidence inheres in themisguided belief of some unfortunate police officers that merely becausethe fourth amendment is part of our Constitution, it is to be taken seriously.It is the purpose of this Article to establish that inasmuch as this antiquatednotion has been rejected by the judiciary, it is time for the police to acceptthe invitation of those more learned in the law and stop taking the fourthamendment so seriously. This Article will first establish that United StatesSupreme Court decisions have in fact invited the police to stop taking thefourth amendment seriously, and second that sound notions of publicpolicy suggest that the police accept this invitation enthusiastically.

While many Supreme Court decisions have established the proposi-tion that the fourth amendment is not to be taken seriously, none support itbetter than those that have admitted unconstitutionally seized evidence attrial because the evidence was seized in contravention of a third person'sconstitutional rights. Although this concept has been part of our jurispru-dence for several years, it has only been since 1978 that the Court hasopenly encouraged unconstitutional searches and seizures. This is not tosay that earlier decisions did not encourage unlawful searches. Forexample, in Brown v. United States,' the petitioners were convicted oftransporting stolen goods on the basis of evidence unlawfully obtained

t The similarity between the title of this Article and that of Jonathan Swift's classicessay, A Modest Proposal For Preventing The Children Of Ireland From Being A BurdenTo Their Parents Or Country, is not entirely coincidental.

* Professor of Law, University of North Carolina School of Law. B.S. 1961, J.D.1963, Boston University; LL.M. 1964, Harvard University. The author would like to thankPaul M. James, III, a recent graduate of the University of North Carolina School of Law,for his assistance in researching this Article.

1. 411 U.S. 223 (1973).

RUTGERS LAW JOURNAL

from a co-conspirator to whom they had delivered the goods.2 The Courtupheld the convictions determining that the petitioners failed to allege anylegitimate interest in the premises searched or the merchandise seized. 3

While a diligent police officer might have read this opinion and understoodthat under some circumstances he could unlawfully search A and still usethe evidence against B, he should not have assumed a carte blanche powerto do so. The Court specifically limited its holding to cases in which

the defendants: (a) were not on the premises at the time of the contestedsearch and seizure; (b) alleged no proprietary or possessory interest in thepremises; and (c) were not charged with an offense that includes, as anessential element of the offense charged, possession of the seized evidenceat the time of the contested search and seizure.'

In 1978 and 1980, an important series of decisions discarded theselimitations, and virtually guaranteed our diligent police officer the previ-ously missing carte blanche power. 5

The first of these cases, Rakas v. Illinois,6 allowed evidence that wasobtained from a presumptively unconstitutional search of an automobile7

to be used against two of the passengers of the automobile who were targets

2. Id. at 224-26. The co-conspirator successfully moved to have the unlawfully seizedevidence suppressed for use against him. Id. at 226.

3. Id. at 229-30. The petitioners asserted that they had "automatic" standing tochallenge the search and seizure, relying on Jones v. United States, 362 U.S. 257 (1960).The Brown court determined that Jones was inapplicable, as "the Government's caseagainst petitioners [did] not depend on petitioners' possession of the seized evidence at thetime of the contested search and seizure." Brown, 411 U.S. at 228.

4. Id. at 229. The Court did not decide whether all three factors were essential to denystanding.

5. Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83(1980); Rawlings v. Kentucky, 448 U.S. 98 (1980); United States v. Payner, 447 U.S. 727(1980).

6. 439 U.S. 128 (1978).7. Since Rakas was denied standing the unconstitutionality of the search was never

determined. Id. at 129-30. It is difficult to conceive that the police had probable cause tosearch the car, however, under the facts in Rakas: police were looking for a 1970 bluePlymouth Roadrunner used as a getaway car after the robbery. The car was described ashaving a white racing stripe and damage to the front. The license was said to be SA,numbers unknown. The fleeing robbers were described as two white males, one wearing ablue shirt and dark jacket. Police stopped and searched, at gunpoint, a 1970 purpleRoadrunner with no stripe or damage to the front. The car's license plate was RT-6237. Thecar had four occupants in it, two men and two women. One of the men was wearing a blueshirt. Just before the car was stopped it was described as traveling at an unusually slow pace.See Appendix at 4-24, Rakas v. Illinois, 439 U.S. 128 (1978). However, before the car wasstopped the real getaway car had already been recovered. Brief for Petitioners at 6, id.Assuming that one could stretch these facts as giving rise to a reasonable suspicion sufficientto allow the police to stop the vehicle, it is unimaginable that the police had probable causefor their gunpoint search.

[Vol. 16:831

FOURTH AMENDMENT

of the search. The Court not only rejected the petitioners' argument thatthe target of a search or seizure should be permitted to challenge itsconstitutionality8 but also held, contrary to what had always beenassumed,9 that a passenger in an automobile with the permission of theowner could not challenge the constitutionality of a search of thatautomobile. 10 The enormous potential for the diligent police officer wassuccinctly explained in Justice White's dissent:

This decision invites the police to engage in patently unreasonable searchesevery time an automobile contains more than one occupant. Shouldsomething be found, only the owner of the vehicle, or of the item,""i willhave standing to seek suppression, and the evidence will presumably beusable against the other occupants. 2

The Court's message for those fighting organized crime should beclear. Organized criminals frequently travel together in automobiles.Whenever a police officer sees two or more suspected organized criminalstraveling together, he can search their car, secure in the knowledge thatany evidence which is found probably will be admissible against at least oneof the criminals. Consequently, it behooves a police force seriouslycommitted to combatting organized crime to monitor organized criminalsconstantly so that no opportunity to search a carload of criminals will besquandered.

Less than two years later, the promise of Rakas was significantlyexpanded by the companion cases of United States v. Salvucci 3 andRawlings v. Kentucky.14 Salvucci specifically overruled a prior de-cision1" and held that in a prosecution for possession of a given item (in this

8. Rakas, 439 U.S. at 132-38. Although this holding was probably not an innovationin fourth amendment jurisprudence, cf. Alderman v. United States, 394 U.S. 165 (1969)(target of search may not challenge its unconstitutionality), it holds great potential for thediligent police department that is "out to get" someone. See infra text accompanying notes28-39. See United States v. Payner, 447 U.S. 727 (1980).

9. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Chambers v. Maroney,399 U.S. 42 (1970) (person convicted of crime based on evidence seized in search of vehiclein which he had been passenger permitted to challenge validity of search).

10. Rakas, 439 U.S. at 148-49.i1. Ownership of the item seized is no longer a sufficient basis for challenging an

unlawful search. See Rawlings v. Kentucky, 448 U.S. 98 (1980) (discussed infra textaccompanying notes 20-27).

12. 439 U.S. at 168-69 (White, J., dissenting) (footnote omitted).13. 448 U.S. 83 (1980).14. 448 U.S. 98 (1980).15. The"automatic standing" rule of Jones v. United States, 362 U.S. 257 (1960) (see

supra note 3), was explicitly overruled by the Court. The Court stated that because theoriginal purposes for the rule no longer existed, and because there were no alternativepurposes for the rule, the rule should not be retained. Salvucci, 448 U.S. at 89.

1985]

RUTGERS LAW JOURNAL

case, stolen mail), the person accused of possession does not necessarilyhave standing to challenge the unconstitutional search that yielded theitem he allegedly possessed.1 Despite Salvucci's argument that it wascontradictory for the government to argue both that he possessed the seizeditems and that he could not challenge the search which yielded them, theCourt found no contradiction. 7 Rather, it held that only those with alegitimate expectation of privacy in the place searched could challenge thesearch. 8 Because Salvucci did not challenge the constitutionality of theseizure of the items once they were found, but challenged only the searchthat yielded them, his alleged possession of the items seized did notestablish standing.19 By thus separating the components of search fromthose of seizure, the Court was able to prevent another criminal fromescaping justice merely because the evidence necessary to convict him wasobtained in violation of the Constitution.

Rawlings v. Kentucky involved a presumptively unconstitutionalsearch of a purse belonging to Rawlings' companion which yielded drugsbelonging to Rawlings.20 Although Rawlings had placed the drugs in his

16. Id. at 91.17. Id. at 90. The court stated that its previous decisions, especially Rakas v. Illinois,

439 U.S. 128 (1978) (see supra notes 6-12 and accompanying text), clearly established thatno contradiction existed. Salvucci, 448 U.S. at 90.

18. Salvucci, 448 U.S. at 91-93.19. Id. at 91 & n.6.20. Rawlings, 448 U.S. at 114 (Marshall, J., dissenting). Kentucky conceded the

unconstitutionality of the search, a concession that the dissent thought was compelled byYbarra v. Illinois, 444 U.S. 85 (1979). Rawlings, 448 U.S. at 114 (Marshall, J., dissenting).Arguably, however, the concession was not necessary. Ybarra involved a search of severalbar patrons during the arrest of a bartender. The only basis for the search was the presenceof these patrons at a public place while an arrest warrant was served on an employee of theplace. Rawlings, on the other hand, involved a search following the procurement of a searchwarrant predicated on the lawful discovery of marijuana in a house, at which Rawlings andhis companion were guests. Rawlings, 448 U.S. at 100-01. Arguably, the search could havebeen upheld on the theory that finding marijuana in the house subjected all the occupants toarrest, in which case the search would have been legal as a search incident to the arrest. SeeChimel v. California, 395 U.S. 725 (1969). This solution commended itself to the KentuckyCourt of Appeals. Rawlings, 448 U.S. at 103. Alternatively, since the warrant authorized asearch of the house, it could be argued that the purse, being in the house, was subject tobeing searched. Cf. United States v. Ross, 456 U.S. 798 (1982) (upholding search ofcontainer found in car because there was probable cause to search car). I am not suggestingthat this search was necessarily constitutional, only that it was not clearly unconstitutional.

Of course, it is easier for the State to win if the constitutionality of the search isconsidered irrelevant than it would be if the State had to establish its constitutionality. Thissuggests the motivation for Kentucky's arguably unnecessary concession. Cf. United Statesv. Leon, 104 S. Ct. 3405, 3412 (1984) (government conceded unconstitutionality of search,arguably incorrectly, so that Court could use case as vehicle for adopting "good faith"exception to exclusionary rule).

[Vol. 16:831

FOURTH AMENDMENT

companion's purse, presumably with her permission," the Court held thatneither his ownership of the drugs nor his interest in his companion's purse,which she had granted him, were sufficient to allow him to challenge theconstitutionality of the search.22 Because of the decision in Salvucci,Rawlings could not successfully predicate his fourth amendment claim onhis ownership of the drugs, notwithstanding several earlier decisions thathad predicated standing on precisely that ground.2 3 One might havethought that his interest in the purse, which was sitting between him and itsowner on a couch at the time it was unconstitutionally searched, might besufficient to allow a fourth amendment challenge. It was not, according tothis Court which held that he had no reasonable expectation of privacy inthe purse for several reasons. 4 First, Rawlings testified that he expectedthe purse to be searched (a not surprising expectation in view of the factthat the police told him that it would be searched). Second, he had knownMs. Cox, the owner of the purse, only a few days (although he had slept ather home for two of those nights). Third, this was a first-time bailment.Fourth, another friend of Ms. Cox had access to the purse, although therewas no evidence that Rawlings knew this. Fifth, by precipitously placingthe drugs in Ms. Cox's purse, Rawlings failed to take normal precautions tomaintain his privacy (although presumably Ms. Cox could have chal-lenged the identical search of the identical purse) .25After analyzing theseaspects of Rawlings, Professor Wayne LaFave concluded: "BecauseRawlings is based upon a series of notions which, if taken seriously, wouldreduce the fourth amendment to nothing more than 'a form of words,' it ishoped that the decision will have a short life."'28 While Professor LaFave isundoubtedly correct in his assessment of the impact of Rawlings, hisanalysis fails to appreciate the importance the Court attaches to freeing thepolice, to the greatest extent analytically possible, from the disruptiveshackles of the fourth amendment. Justice Marshall's dissent in Rawlingsmore accurately explains the social utility achieved by the Court:

In the words of Mr. Justice Frankfurter: "A decision [of a fourth

21. There was a factual dispute between Rawlings and his companion as to whethershe had given him permission to place his drugs in her purse. See Rawlings, 448 U.S. at 101& n. 1. Nevertheless, the opinion appears to be predicated on the assumption that Rawlingswas telling the truth.

22. Id. at 105-06.23. E.g., Jones v. United States, 362 U.S. 257; United States v. Jeffers, 342 U.S. 48,52

(1951).24. Rawlings, 448 U.S. at 104-05.25. See 3 W. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH

AMENDMENT 11.3, at 224-28 (Supp. 1984).26. Id. at 228 (footnote omitted).

1985]

RUTGERS LAW JOURNAL

amendment claim] may turn on whether one gives that Amendment a placesecond to none in the Bill of Rights, or considers it on the whole a kind ofnuisance, a serious impediment in the war against crime." . . . Today amajority of the Court has substantially cut back the protection afforded bythe Fourth Amendment and the ability of the people to claim thatprotection, apparently out of concern lest the government's ability to obtaincriminal convictions be impeded.2 7

By far the most significant case in the series is United States v.Payner,26 a case in which the Internal Revenue Service (IRS) intentionallyviolated the fourth amendment rights of an individual in order to obtainevidence against another individual. The full import of this case cannot beappreciated without a detailed understanding of the flagrancy of theviolation, which was so extreme that two lower federal courts excluded theevidence under their supervisory powers. 29 The Supreme Court disallowedthe use of the supervisory powers, reversed the lower courts' judgments,and reinstated the conviction."0

Payner involved a scheme by the IRS to obtain documents from oneMichael Wolstencroft, a Bahamian bank executive who was thought tohave documents incriminating several unknown Americans.3 1 In order toobtain these documents, Norman Casper, a private investigator employedby IRS agent Richard Jaffe, proposed a scheme to Jaffe in which thedesired documents could be stolen, copied, and replaced. Jaffe, aware thatunconstitutionally seized evidence could be admitted against a non-victimof the search,3 2 approved the scheme.

Thus, Casper, who had cultivated a friendship with Wolstencroft,introduced him to Sybol Kennedy who, unknown to Wolstencroft, was aprivate detective employed by Casper. Kennedy's role in the scheme was to

27. Rawlings, 448 U.S. at 120-21 (quoting Harris v. United States, 331 U.S. 145, 157(1947) (Frankfurter, J., dissenting)).

28. 447 U.S. 727 (1980).29. 434 F. Supp. 113, 133-35 (N.D. Ohio 1977), afid, 590 F.2d 206, 207 (6th Cir.

1979) (per curiam), rev'd, 447 U.S. 727 (1980). Under the court's supervisory powers, thefederal judiciary is empowered to take actions which will further the ends of justice. 434 F.Supp. at 133 (citing McNabb v. United States, 318 U.S. 332 (1943)). The district courtdetermined that the government had acted illegally and in bad faith, and society's interest indeterring such conduct outweighs society's interest in providing the trier of fact withrelevant evidence. Payner, 434 F. Supp. at 135. The court of appeals agreed thatsuppression was justified under the supervisory powers. 590 F.2d at 207.

30. Payner, 447 U.S. at 734-35.31. Id. at 729-30. Wolstencroft was vice-president of the Castle Bank and Trust

Company of Nassau, Bahama Islands, on which investigators had focused attention when itwas learned that a suspected narcotics trafficker had an account there. Id. at 729.

32. See generally 434 F. Supp. at 118-22.

[Vol. 16:831

FOURTH AMENDMENT

have Wolstencroft meet her at her Miami apartment and go out to dinnertogether, with his briefcase filled with papers left behind in her apartment.Casper, who had been provided a key to the apartment, was to enter theapartment, steal the briefcase, and bring it to an IRS agent's apartment. Inthe presence of Casper, Jaffe, and an IRS photocopying expert, an IRSexpert locksmith made a key to open the briefcase. The plan worked toperfection: Casper, Jaffe and the photocopying expert copied over fourhundred documents before Casper relocked the briefcase and returned it toKennedy's apartment prior to Wolstencroft's return." The IRS paidCasper $8,000 for his services, and Casper in turn paid Kennedy approxi-mately $1,000 for hers.34

Although the Supreme Court overturned the two lower court deci-sions excluding the evidence and held that the evidence could be introducedagainst Payner, whose fourth amendment rights were not violated, there islanguage in the Court's opinion which a diligent police officer could read asdisapproving the procedures employed by the IRS. Specifically, the Courtstated: "We certainly can understand the District Court's commendabledesire to deter deliberate intrusions into the privacy of persons who areunlikely to become criminal defendants in a criminal prosecution. . . .Nocourt should condone the unconstitutional and possibly criminal behaviorof those who planned and executed this 'briefcase caper.' "5 Even morepointedly, Chief Justice Burger, in his concurring opinion, stated: "I agreefully with the Court that the exclusionary rule is inapplicable to a case ofthis kind, but that should not be read as condoning the conduct of the IRS'private investigators' as disclosed by this record, or as approval of theirevidence-gathering methods."3 6

The Court knows, however, that its actions speak louder than itswords. While reinstating Payner's conviction, the Court was very muchaware that no disciplinary actions had been taken against those responsiblefor the "briefcase caper,"3 and that such corrective measures as weretaken could not prevent a similar incident in the future.3 8 More impor-

33. Payner, 434 F. Supp. at 120. In addition to these documents, Casper, pursuant toJaffe's request for more information, sent Kennedy to visit Wolstencroft in the Bahamas,during which visit Kennedy stole a rolodex file from Wolstencroft's office. Id. Nothing fromthe file was used against Payner. Id. at 123 n.56.

34. Id. at 120.35. 447 U.S. at 733 (citation and footnote omitted).36. Id. at 737-38 (Burger, C.J., concurring).37. Id. at 750 n.16 (Marshall, J., dissenting).38. The Court described the measures adopted by the IRS as "less positive than one

might expect from an agency charged with upholding the law .. " Id. at 733 n.5.Although it refused to "assume that similar lawless conduct, if brought to the attention of

19851

RUTGERS LAW JOURNAL

tantly, the Court's precise reason for reinstating Payner's conviction wasthat the use of the evidence was more important than deterring bad faithviolations. The Court bluntly stated that "[tihe District Court erred,therefore, when it concluded that 'society's interest in deterring [bad faith]conduct by exclusion outweigh[s] society's interest in furnishing the trierof fact with all relevant evidence.' '39

The message for police could hardly be clearer. Noncriminal friendsor relatives of organized criminals frequently possess property which mayin some way inculpate the organized criminal. The police have little to loseby regularly searching such noncriminals. If they find evidence implicatingthe organized criminal, it will be admissible against him. If they do not, noharm is done except for the short waste of time occasioned by the fruitlesssearch. While an innocent citizen may have his fourth amendment rightsviolated, that is not the police officer's problem.40 Thus, it seems clear fromRakas, Salvucci, Rawlings, and Payner that the fourth amendment neednot be taken seriously when seeking evidence to be used against thirdparties.

Suppose the police officer wants to pursue the organized criminaldirectly. Does he then not necessarily have to take the fourth amendmentseriously? Several cases suggest he does not. These cases indicate that theCourt will not allow the fourth amendment to impede the police signifi-cantly in their search for evidence. No cases illustrate this better than thosewhich have upheld searches based on what the Court calls "voluntary"consent.

In the leading case, Schneckloth v. Bustamonte,41 the Court upheld aconsensual search of an automobile whose occupants neither knew norwere informed of their right to withhold consent. The "voluntary" consentoccurred when a police officer stopped the car, which was occupied by

responsible officials, would not be dealt with appropriately," id., the Court did not predicateits decision on the accuracy of its assumption.

39. Id. at 736-37 (quoting 434 F. Supp. at 135).40. Although theoretically a police officer is subject to either a tort or civil rights suit,

as a practical matter damages are not likely to be high enough to encourage filing such asuit. See. e.g., Magnett v. Pelletier, 488 F.2d 33 (1 st Cir. 1973) (award of $500 could not beregarded as nominal damages). Furthermore, if the police department approves theseprocedures, the department is likely to pay any damages as part of its cost of catchingcriminals. See infra note 110. Finally, the police can minimize damages by not doinganything to aggravate the unlawful search and seizure such as humiliating the searchee.Candor does suggest, however, that not all police officers will take advantage of theopportunity to minimize damages. See Monroe v. Pape, 365 U.S. 167, 169 (1961)(complaint alleged that police officers broke into petitioners' home, routed them from bed,and made them stand, naked, in the living room while ransacking the home).

41. 412 U.S. 218 (1973).

[Vol. 16:831

FOURTH AMENDMENT

Bustamonte and five other men."' After stopping the car for defective lightsat 2:40 a.m., the police officer asked all six occupants to leave the car; healso received aid from two additional police officers who had come upon thescene.43 The police officer then asked for and received "voluntary" consentto search the car from one of the occupants, who was not aware that hecould refuse."' Evidence was discovered that was used to convict Bus-tamonte of possessing a check with intent to defraud.4 The Court held thatthe State is not required to demonstrate a defendant's knowledge of hisright to refuse consent in establishing that the defendant voluntarilyconsented to a search." While Bustamonte was limited to noncustodialsituations, 47 a subsequent case, United States v. Watson" upheld the"voluntary" consent of one who had lawfully been arrested and consentedwhile in custody, not knowing that he had the right to refuse.49

Another of Bustamonte's progeny that should delight the hearts ofpolice officers dedicated to obtaining evidence at all costs is United States v.Mendenhall.0 The Court upheld Mendenhall's conviction for possessionof heroin, evidence of which had been challenged on the ground that it hadbeen obtained through an unconstitutional search and seizure.5 1 A federalDrug Enforcement Administration (DEA) agent had requested Menden-hall, a young black woman, disembarking from a flight at the Detroit

42. Id. at 220.43. Id.44. Id. The man, Joe Alcala, had been the only one of the six men to produce a driver's

license. He explained that the car belonged to his brother. Id.45. Id. at 220-21. Upon searching the vehicle, the police officer found three checks

that had previously been stolen from a car wash wadded up under the rear seat. Id. at 220.46. Id. at 248-49. While the Court stated that due process requires that consent be

voluntary, the question of voluntariness is to be determined in accordance with all the factsand circumstances surrounding consent. Id. at 226-27. Knowledge of the right to refuseconsent may be considered in this "totality of circumstances," but it is not a prerequisite toestablishing a voluntary consent. Id. at 227.

47. Id. at 248.48. 423 U.S. 411 (1976).49. Id. at 424-25. Watson was arrested inside a restaurant for possession of stolen

credit cards. He was taken out to the street, where he was given Miranda warnings. When asearch revealed no credit cards on Watson's person, a postal inspector asked Watson if hecould search his car. Watson consented, even though the inspector reportedly advised himthat any evidence found could be used against him. Id. at 412-13. Relying on the Court'sholding in Schneckloth, the Court found that Watson's consent was voluntary; the facts ofarrest and the failure to inform Watson of his right to refuse consent were not sufficient toshow illegal coercion. Id. at 424-25.

50. 446 U.S. 544 (1980).51. Id. at 549-50. The district court denied Mendenhall's motion to suppress, finding

that she had accompanied the DEA agents voluntarily, consented to a search, and was notarrested until after the search. Id. at 549. The court of appeals reversed, finding that therewas not a valid consent. Id. at 549-50.

1985]

RUTGERS LAW JOURNAL [Vol. 16:831

Airport, to accompany him to the DEA office in the airport.52 The agent didnot have probable cause to suspect Mendenhall of any wrongdoing. 53 Astrip search of Mendenhall was conducted after she purportedly consentedto the search, and narcotics were found as a result of the search.54 Althoughthe agent testified that he would not have released Mendenhall to catch herconnecting flight if she had refused to consent to the search,55 the Courtupheld this "voluntary" consent, evidently on the theory that a reasonableperson would not have felt compelled to consent.50

As promising as "voluntary" consent searches appear for the diligentpolice officer, there is a problem with relying on them to incriminate theleaders of organized crime. Such leaders are generally more sophisticatedthan the high school dropout in Mendenhall or the lone defrauder inWatson or the frightend young men stopped by the side of the road inBustamonte. An organized crime leader with something to hide wouldsimply refuse to consent, even if it meant missing his plane or beingarrested. Consequently, the police can count on consent searches for onlylone criminals and lower echelon unsophisticated organized criminals.Fortunately, the Supreme Court has upheld several practices that arebetter suited for obtaining evidence from the leaders of organized crime.

One of the most promising is the "open fields" exception to the fourthamendment, upheld by Oliver v. United States.5 7 Before focusing on theutility of the "open fields" doctrine in incriminating organized crime

52. Id. at 547-48. The agent testified that Mendenhall fit the so-called "drug courierprofile:" she was arriving on a flight from Los Angeles, she was the last to disembark, sheappeared very nervous, she did not claim any baggage, and she changed airlines for herflight from Detroit. Id. at 547 n.l.

53. The government conceded that it did not have probable cause to believe thatMendenhall was carrying narcotics when she was searched. Id. at 550-51.

54. Id. at 548-59.55. 446 U.S. at 576 & n.13 (White, J., dissenting).56. On the issue of whether Mendenhall had been seized when she accompanied the

agent to the DEA office, Justice Stewart's plurality opinion stated:We conclude that a person has been "seized" within the meaning of the FourthAmendment only if, in view of all of the circumstances surrounding the incident, areasonable person would have believed that he was not free to leave. . . . [T]hesubjective intention of the DEA Agent in this case to detain the respondent, had sheattempted to leave, is irrelevant except insofar as that may have been conveyed tothe respondent.

Id. at 554 & n.6. Thus, consent to search could have been held "voluntary" even if (as shemay well have) Mendenhall rightly believed that she could not leave without consenting to astrip search.

57. 104 S. Ct. 1735 (1984). In Oliver, police went to Oliver's farm after receivingreports of marijuana being grown on the farm. They drove past petitioner's home andwalked around a gate with a "No Trespassing" sign. Over a mile from Oliver's home, theyfound a field of marijuana. Id. at 1738.

FOURTH AMENDMENT

leaders, it is necessary to explain the scope of Oliver. One would hardly besurprised to learn that a police officer or other individual can enter an openunfenced field or bucolic meadow. People enter such open places all thetime, secure in the belief that they are not trespassing upon anyone's rights.Should a police officer enter such a place, few would doubt the propriety ofhis seizing any evidence within "plain view.""

The Oliver Court's concept of open fields, however, is not so limited.The Court held that "[a]n open field need be neither 'open' nor a 'field' asthose terms are used in common speech."" Instead, it defined "open fields"as "includ[ing] any unoccupied or undeveloped area outside of thecurtilage." 60 In so holding, the Court rejected Oliver's argument that thequestion of fourth amendment protection should depend on whether thelandowner took reasonable steps to preserve his privacy.6 The Courtexplained that under such an approach "police officers would have to guessbefore every search whether landowners had erected fences sufficientlyhigh, posted a sufficient number of warning signs, or located contraband inan area sufficiently secluded to establish a right of privacy."62 Obviouslythe Court could not impose such a terrible burden on law enforcement,since such a burden might cause some police officers to be over-cautiousand err on the side of obtaining a warrant rather than conducting a searchon their own whim. Consequently, even the thick woods, fence, locked gate,and "no trespassing" signs found in Oliver and its companion case 63 werenot sufficient to grant fourth amendment protection to those "open fields."

In terms of crime fighting potential, it is important that the diligentpolice officer be aware of the full impact of this decision. It does not merelyhold that police must adhere to watered down fourth amendment stan-dards such as searching without a warrant but with probable cause,64 or

58. Cf. Texas v. Brown, 460 U.S 730 (1983); Coolidge v. New Hampshire, 403 U.S.443 (1971) ("plain view" doctrine).

59. 104 S. Ct. at 1742 n.ll.60. Id. While defining curtilage as "the land immediately surrounding and associated

with the home," id. at 1742, and "the area to which extends the intimate activity associatedwith the 'sanctity of a man's home and the privacies of fife,' " id., the Court intentionally leftopen what it called "the scope of the curtilage exception to the open fields doctrine." Id. at1742 n.I I.

61. Id.62. Id. at 1742-43.63. Maine v. Thornton, 104 S. Ct. 1735 (1984), in which police, acting upon an

anonymous tip, entered the woods behind Thornton's residence and followed a footpathuntil they reached two marijuana patches. Id. at 1739.

64. See, e.g., United States v. Ross, 456 U.S. 798 (1982) (warrantless search ofautomobile is permitted only when there is probable cause to search for evidence therein).

19851

RUTGERS LAW JOURNAL

without probable cause, but with reasonable suspicion.ea Rather, it holdsthat since "open fields" are neither persons, houses, papers, nor effects,"the government's intrusion upon the open fields is not one of those'unreasonable searches' proscribed by the text of the Fourth Amend-ment." ' Consequently, under the Court's view of fourth amendmentprotection, the police may not only contravene local trespass laws, but mayconduct carte blanche searches in every "open field" throughout thisnation.

67

To the extent that organized crime leaders own large tracts ofundeveloped or unoccupied lands, the message for diligent police officers isclear. If the land contains an airfield that the police believe may be used forsmuggling contraband, they may hide men on the premises. Anything theysee in plain view from their hiding places will be admissible. 8 If theybelieve the suspected organized crime leader meets with his associates incrime on these "open fields," the police can maintain a secret presence,indefinitely if they so desire. The Court obviously views any threat to thefourth amendment from such practices as too insignificant to warrantprotection.

Another area in which the fourth amendment need not be takenseriously is that of automobile searches. It is, of course, black letter law thatthe police may stop and search an automobile without a warrant. 9 Thispower extends to searches conducted in a private police garage after thevehicle has been immobilized and the police have had time to obtain awarrant.7 0 Generally, it extends even to containers found in the automo-

65. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (search permitted where officer hasreasonable belief that person is armed and dangerous, regardless of whether he has probablecause to arrest that person for a crime).

66. Oliver, 104 S. Ct. at 1740. While the Court emphasized that protections againstunreasonable seizures would apply even in "open fields," id. at 1741 n. 10, that should notlimit the diligent police officer. For example, if the officer thinks that a bank's stolen moneymay be hidden under a lovely patch of flowers in an "open field," he may dig up the flowersand, if he finds a bag with the bank's name on it, he may of course seize it since he found it inplain view in a place where he had a right to be. Cf Texas v. Brown, 460 U.S. 730 (1983)("plainview" doctrine). Should he find nothing, however, he can rest assured in theknowledge that his precipitous destruction of the flowers was not a violation of the fourthamendment.

67. Oliver, 104 S. Ct. at 1742. There may be, at least theoretically, other remedies,such as an action for invasion of privacy. See supra note 40.

68. See State v. Brady, 406 So. 2d 1093 (Fla. 1981) (expectation of privacy in fieldsurrounded by dike), vacated, 104 S. Ct. 2380 (1984) (remanded for further considerationin light of Oliver).

69. Carroll v. United States, 267 U.S. 152 (1925) (permitting warrantless search ofmovable automobile upon probable cause).

70. Chambers v. Maroney, 399 U.S. 42 (1970) (because there would have beenprobable cause to search vehicle when it was stopped, probable cause still obtained in search

[Vol. 16:831

FOURTH AMENDMENT

bile.7 1 There is one unfortunate limitation, however; the police officer musthave probable cause to search. Although probable cause means no morethan "fair probability,"72 and may mean no more than "good faith belief'that there is a "fair probability," 7 some police officers may prefer not toworry about such legal niceties.

There is a solution for these police officers. The Court has held that apolice officer may use a flashlight to look into an automobile that is eitherparked or lawfully stopped. 4 Organized criminals, like other citizens,sometimes park their cars in public garages or parking lots. Because thepublic can look through the windows of these cars, so may a police officer.Such activity might be especially fruitful at night with a flashlight, becausethe car owner would probably assume that no one would be able to seeinside his darkened car at night, and consequently might leave someprivate item or evidence of crime within view.

If a police officer needs to look further, he can follow a car (preferablyin an unmarked car) and stop the driver when the driver violates sometraffic law. Unquestionably the police officer can shine his flashlight in theglove compartment while the driver looks for the registration card. 75 Hemay even be able to effect a full custodial arrest.76 If so, he can search theentire passenger compartment of the vehicle, including every containerfound therein.

A different kind of vehicular search likely to be quite effective againstorganized criminals is suggested by United States v. Villamonte-Mar-

at police station).7 1. See, e.g., United States v. Ross, 456 U.S. 798 (1982); cf. Castleberry v. Oklahoma,

53 U.S.L.W. 4450 (1985) (per curiam 4-4 decision on the scope of Ross).72. Illinois v. Gates, 462 U.S. 213, 246 (1983).73. Cf. United States v. Leon, 104 S. Ct. 3405, 3421 (1984) (holding the standard of

"objective good faith" applicable to a search conducted with a warrant).74. See Texas v. Brown, 460 U.S. 730 (1983):It is . . . beyond dispute that [the officer's] action in shining his flashlight toilluminate the interior of Brown's car trenched upon no right secured to the latter bythe Fourth Amendment. . . . Numerous other courts have agreed that the use ofartificial means to illuminate a darkened area simply does not constitute a search,and thus triggers no Fourth Amendment protection.

Id. at 739-40 (citations omitted).75. See id.76. See United States v. Franklin, 728 F.2d 994 (8th Cir. 1984) (arrest and search

incident to arrest constitutionally permissible where Franklin was observed violating trafficregulations and failed to explain adequately the absence of state license plates andregistration); cf. Gustafson v. Florida, 414 U.S. 260 (1973) (search of driver upheld assearch incident to arrest for non-possession of driver's license).

77. New York v. Belton, 453 U.S. 454 (1981) (where there is lawful custodial arrest,officer can search automobile passenger compartment as incident to arrest).

19851

RUTGERS LAW JOURNAL

quez 7 8 which upheld the suspicionless7 9 boarding of a vessel pursuant to astatute which provides that "any officer of the customs may any time go onboard any vessel. . . at any place in the United States. . .and examinethe manifest and other documents and papers. . . and to that end may hailand stop such vessel and use all necessary force to compel compliance." 80

Purporting to board the vessel for a manifest check, the customs officer,accompanied by an officer of the Louisiana State Patrol, claimed to smellburning marijuana, went below deck and found the marijuana. 81 TheCourt held that boarding the vessel in hope of finding evidence would notinvalidate the search.82 An officer wishing to insure access to the privateareas of a vessel could accept the statutory invitation to visit at a lessconvenient time, such as 3:00 a.m., when he could be confident that theoccupants would be below deck sleeping. Not only would he be more likelyto see private and possibly incriminating items on board, but the occupantswould probably be too sleepy to preserve their privacy. Because organizedcrime leaders are frequently wealthy enough to own large houseboats thatcan be used for smuggling, this may be a particularly attractive type ofsearch to undertake.83

The above instances of the Court's reluctance to take the fourthamendment seriously obviously are not exhaustive. However, not all such

78. 462 U.S. 579 (1983).79. Whether the boarding was actually suspicionless is debatable. However, the

opinion was predicated on the assumption that it was suspicionless. Id. at 581.80. 19 U.S.C. § 1581(a) (1982).81. 462 U.S. at 582-83. Customs officers were patrolling the Calcasieu River Ship

Channel, when they saw respondents' sailboat being rocked violently by the wake of a largefreighter. Sighting one of the respondents on deck, an officer asked the respondent if theboat and crew were all right. The respondent shrugged in an unresponsive manner. Theofficers then boarded the vessel and asked for documentation. Id.

82. Id. at 593. The Court specifically rejected Villamonte-Marquez's argument thatbecause the customs officers were accompanied by a Louisiana State Trooper and wereacting upon a tip that a vessel may be carrying marijuana, they could not board for asuspicionless license inspection. The Court declared: "we would see little logic insanctioning such examinations of ordinary, unsuspect vessels but forbidding them in thecase of suspected smugglers." Id. at 584 n.3 (quoting United States v. Arra, 630 F.2d 836,846 (1st Cir. 1980)).

83. While it is theoretically possible to argue that the Court might not sustain an"after-hours" search since the search in Villamonte-Marquez was at midday, and theCourt emphasized that the intrusion was modest, a diligent police officer probably need notworry about such a possibility since much of the Court's opinion was predicated upon thestatute's "impressive historical pedigree." Villamonte-Marquez, 462 U.S. at 592. Shouldthe Court decide that the "impressive historic pedigree" does not apply to the "at any time"provision of the statute, the diligent police officer can nevertheless search a suspectedcriminal's vessel by boarding it at a time of the day when he believes the occupants will bebelow deck, such as lunch time.

[Vol. 16:831

FOURTH AMENDMENT

instances are particularly helpful in fighting organized crime. For exam-ple, Immigration and Naturalization Service v. Delgado,8 4 which upheldthe Immigration and Naturalization Service (INS) practice of stationingits agents at factory exits where other agents sought to question employeesabout their citizenship, may frighten both illegal aliens and Americancitizens of Mexican ancestry, but does little for those fighting organizedcrime. On the other hand, Immigration and Naturalization Service v.Lopez-Mendoza's85 holding that the exclusionary rule does not apply todeportation proceedings86 might assist the police in their efforts to cleanseus of organized crime. When a police officer suspects that an alien isinvolved in crime, organized or not, he can search him, and if he findsevidence of his criminal involvement he can turn that evidence over to theINS for use in a deportation proceeding . 7

Thus, it is apparent that a police officer determined not to take thefourth amendment seriously in his pursuit of organized criminals hasample opportunity to so conduct himself. The remaining question iswhether it is sound policy for him to do so.

II

In ascertaining whether a diligent police officer should accept theSupreme Court's invitation to stop taking the fourth amendment seriously,it is necessary to analyze the purpose of the fourth amendment, the role ofthe police officer, and the costs and benefits occasioned by acceptance asopposed to rejection of the invitation.

The purpose of the fourth amendment is to strike a balance betweenthe citizenry's right to be free from undue police intrusions and its need tohave crime solved efficiently. 88 Toward that end, the amendment forbids

84. 104 S. Ct. 1758 (1984).85. 104 S. Ct. 3479 (1984).86. Id. at 3490. The Court stated that the costs of applying the exclusionary rule in the

context of deportation hearings are high, and the deterrent value small, as the INS hadtaken reasonable measures to deter fourth amendment violations by its officers. Id.

87. One could argue that Lopez-Mendoza involved direct evidence of illegal alienagewhich is different from the hypothetical involving criminal, and hence deportable, conductby an alien. The Court, however, is unlikely to hold the latter subject to the exclusionary rulewhile exempting the former. In both cases, the deportation proceeding is civil. The Lopez-Mendoza Court, citing United States v. Janis, 428 U.S. 433, 447 (1976), emphasized that"the court never has applied [the exclusionary rule] to exclude evidence from a civilproceeding, federal or state." 104 S. Ct. at 3486. Indeed, since the INS agents regularly tryto obtain evidence for deportation proceedings, whereas state or federal police officers do soonly occasionally, there may actually be less reason to invoke the exclusionary rule in thehypothetical than there was in Lopez-Mendoza.

88. See Loewy, Protecting Citizens from Cops and Crooks: An Assessment of the

1985]

RUTGERS LAW JOURNAL

unreasonable searches, but implicitly permits reasonable ones. One type ofsearch that traditionally has been held unreasonable is that in which theprobability of finding the sought-after evidence is so low that the burden ona probably innocent searchee is not justified. Such a search is said to lackprobable cause 89 or reasonable suspicion. 10 Another type of search tradi-tionally disallowed is the warrantless search, that is, one that has not beenapproved in advance by an independent and neutral magistrate. This typeof search is disallowed because of the "unjustifiably high risk that one'engaged in the often competitive enterprise of ferreting out crime (such asa policeman)' will subject an innocent person to a search or seizure."91

To the extent that the fourth amendment is his sole guide, a good casecan be made for the diligent police officer's rejecting the Supreme Court'sinvitation to stop taking the fourth amendment seriously. After all, thepolice officer is theoretically concerned with the privacy of innocentcitizens. Thus, a case could be made for not arbitrarily searching innocentthird parties in hope of finding evidence against another, or randomlytearing down fences and "no trespassing" signs before trampling throughwhat the Court calls "open fields." However, there is another factor. Somepolice departments reward their police officers more for the evidence theyobtain and criminals they capture than for the privacy they preserve.Consider the following scenario involving a police captain and two officers:Captain: Officer A, what did you do last month?Officer A: Last month while on duty I saw thirty heavily wooded fenced-inareas with "no trespassing" signs. Because they sought privacy, I wassomewhat concerned that they might be growing marijuana. So I blasted ahole in each fence, like the Supreme Court said I could, and carefullysearched the whole fenced-in area. Fortunately, things were slow lastmonth, so I had plenty of time for these operations.Captain: Did you find anything?Officer A: I sure did. In two of the thirty fields, I found marijuana growing.One of them even turned out to be owned by an organized crime leader. Ithink that we're going to be able to put him away.Captain: What about the other twenty-eight?

Supreme Court's Interpretation of the Fourth Amendment During the 1982 Term, 62N.C.L. REV. 329, 330 (1984).

89. Florida v. Royer, 460 U.S. 491, 507 (1983) (search of luggage invalidated becauseprobable cause was lacking).

90. Cf. Brown v. Texas, 443 U.S. 47, 51-52 (1979) (absent reasonable suspicion,defendant cannot be convicted of refusing to identify himself).

91. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81MICH. L. REV. 1229, 1230 (1983), quoting Johnson v. United States, 333 U.S. 10, 14(1948).

[Vol. 16:831

FOURTH AMENDMENT

Officer A: Well in twenty of them, I found nothing. Except for the hole inthe fence, nobody would even know I was there. In two other searches, Ifound couples making love. Unfortunately, they were married, so I couldn'tarrest them. 92 In three other searches, I found people meeting at a hideoutthat they had hoped to keep secret. In another search, I found a group ofscientists conducting experiments that they had hoped to keep secret. Inthe remaining two searches, I just found the owners seeking peace andrepose in their woods. I don't think they minded my being there, especiallysince they couldn't do anything about it.Captain: Officer B, what did you do last month?Officer B: I also saw thirty heavily wooded fenced-in areas with "notrespassing" signs. I figured that while one or two of these areas mightcontain evidence of crime, most would not. Since the owners obviouslysought privacy, and since most were innocent and had no outward indicia ofguilt, I decided to respect their privacy and not search any of them.Consequently, I have neither made any arrests nor uncovered any evidencethis month.

Each police officer reading this article can of course determine forhimself whether his department would be more pleased with the perform-ance of Officer A or Officer B. To the extent that I am correct, however, inthinking that most police departments would reward Officer A's perform-ance more than Officer B's, there is a powerful incentive for a police officerto join the Supreme Court in not taking the fourth amendment seriously.

Before deciding to accept the Supreme Court's invitation in toto, thediligent police officer should consider potential tort liability. Fortunately,some of the opportunities for not taking the fourth amendment seriously donot involve a risk of tort liability. The police officer who shines a light intoevery car in a public parking lot need not fear liability because he has notcommitted any tort. He has simply viewed that which the car owner hasexposed to the public. Similarly, the customs official who accepts thestatutory invitation to board a vessel "at any time" is merely doing what aconstitutional statute authorized him to do. Finally, the police officer whoobtains "voluntary" consent from an automobile or airline traveller cannotbe sued precisely because the person has consented.

Other cases, however, are not so easy. In the above hypothetical,Officer A has probably committed a trespass in violation of local law. 93 Heprobably would be liable for the holes he blasted in the fences and possibly

92. Cf Griswold v. Connecticut, 381 U.S. 479 (1965) (presumably "marital privacy"inheres in a fenced-in "open field," laden with "no trespassing" signs).

93. See, e.g., Ky. REV. STAT. § 511.070, .080, .090(4) (1985); ME. REV. STAT. ANN.tit. 17A, § 402(l)(c) (1983).

19851

RUTGERS LAW JOURNAL

for the privacy he invaded in several of the other cases. There are, of course,several things that the diligent police officer can do to minimize damages.He could try not to damage the fence. When possible, he could vault over itinstead of destroying it. In that event, the owner might not even learn thathis privacy had been violated. When total nondestruction is impossible, thepolice officer could cut a small portion of the fence rather than blasting it.He could then repair the fence when he was finished. Surely any tortdamages would be nominal.94 Finally, he could clear the project with hissuperiors in advance and in the process have the Department agree toindemnify him from any tort liability.

The Rakas,95 Salvucci,96 Rawlings,97 and Payner98 series has thepotential to create tort liability, but should not significantly influence thediligent police officer if he properly handles the situations. Rakas,Salvucci, and Rawlings involved a search of an automobile, an apartment,and a purse, respectively. In each case, if the police officer intrudes no morethan is necessary to conduct the search, the damages are not likely to besubstantial.9 9 Indeed, only the Salvucci situation (involving the search ofan apartment) presents any chance that a careless police officer is likely tocause enough damage to render a lawsuit economically feasible for thevictimized searchee. Surely, the potential tort liability for searching thepurse is not likely to deter a diligent police officer from unlawfullysearching a purse in which he hopes to find evidence against someone otherthan the owner.

The Payner situation is even less likely to result in tort liability. Theclandestine nature of the operation, coupled with the return of the briefcaseand papers before Mr. Wolstencroft even knew they were missing, makes itunlikely that he would ever have known that his privacy had been invaded.Indeed, unless a clandestine theft or burglary is handled like the Watergateaffair, 100 the diligent police officer need not fear tort liability. In any event,the police department may find it cost effective to encourage the illegalityand, if caught, pay the damages. For example, in Payner, the IRS surelywould expect to gain far more revenue from its blatant illegalities than it

94. See Magnett v. Pelletier, 488 F.2d 33 (1st Cir. 1973).95. 439 U.S. 128 (1978). See supra notes 6-12 and accompanying text.96. 448 U.S. 83 (1980). See supra notes 15-19 and accompanying text.97. 448 U.S 98 (1980). See supra notes 20-27 and accompanying text.98. 447 U.S. 727 (1980). See supra notes 28-39 and accompanying text.99. See supra note 40.100. See generally CONGRESSIONAL QUARTERLY, WATERGATE: CHRONOLOGY OF A

CRISIS (1973) (describing Watergate crisis from June 17, 1972 break-in to August 15,1973).

[Vol. 16:831

FOURTH AMENDMENT

would have to pay in damages for them.1"'The remaining argument against such practices as randomly shining

lights in parked cars, disregarding "no trespassing" signs, and arbitrarilysearching innocent people to try to find evidence against their guiltyacquaintances, is that these practices create bad police-citizen relation-ships. On balance, however, this should not deter the diligent police officer.Unless a given police department has some unusual bad luck, thesepractices should increase the number of solved crimes, and the number ofconvicted criminals, including organized criminals. Even an unlucky policeofficer should be able to find something criminal in at least one out of everyhundred of these exercises. Surely the populace can be soothed by theknowledge that their diminished expectation of privacy has resulted in amore efficient police force and more convictions of organized criminals.Those who, at first blush, might analogize this trade-off to the practices of atotalitarian government's police forces can rest assured with the knowledgethat while our police forces may have similar powers, our government isdemocratic, and theirs is totalitarian.

III

This Article has established that the Supreme Court does not requirethe police to take the fourth amendment seriously, and that sound policy(plus a little self interest) suggests that the police should not take itseriously. Although the cases discussed in this article seem to establish thefirst proposition beyond peradventure, candor compels the disclosure thatthe Court occasionally renders a decision suggesting that maybe the fourthamendment is to be taken seriously after all. For example, in Florida v.Royer,10 2 the Court invalidated the arrest and subsequent search of anervous young traveller, flying from Florida to New York, notwithstandingthe Court's determination that the police had reasonable suspicion to

101. According to Judge (formerly Professor) Richard Posner (who analyzes viola-tions of the fourth amendment in terms of economic cost, balancing the value of theinformation gained against the "clean up" costs to the victims), it would be economicallyunsound for the government not to conduct the unlawful search in a case similar to Payner.He thus criticizes the exclusionary rule for over-deterring, since it would discourage such asearch and encourage economic inefficiency. Posner, Excessive Sanctions for Governmen-tal Misconduct in Criminal Cases, 57 WASH. L. REV. 635, 638-40 (1982). While somedisagree with Posner and believe that the value of taking the fourth amendment seriously isgreater than the penalty of tort damages typically imposed upon those who violate thefourth amendment, see, e.g., Morris, The Exclusionary Rule, Deterrence and Posner'sEconomic Analysis of Law, 57 WASH. L. REv. 647 (1982), those views need not concern thediligent police officer, who is not bound by them and who does have an obligation to pleasehis superior officers.

102. 460 U.S. 491 (1983).

1985]

RUTGERS LAW JOURNAL

detain him. 108 In language that appeared to accord the fourth amendmentconsiderable esteem, the Court said: "We cannot agree with the State...that every nervous young man paying cash for a ticket to New York Cityunder an assumed name and carrying two heavy American Tourister bagsmay be arrested and held to answer for a serious felony charge."1 ' In thissame vein, the Court in United States v. Place05 invalidated a ninety-minute detention of an airplane traveller's luggage because of the burdensuch a detention could impose on an innocent traveller.106

Although cases such as Royer and Place may confuse the diligentpolice officer, they should not deter him. These cases, while perhaps not"derelict[s] on the waters of the law," 107 certainly are not in themainstream. 08 Even in a Royer or Place situation, it may pay to conduct

103. Id. at 502.104. Id. at 507.105. 462 U.S. 696 (1983).106. Id. at 709-10.107. Lambert v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting).108. The Court invalidated a conviction because of the fourth amendment in only two

other cases during the past two terms (1982 and 1983). Both Michigan v. Clifford, 104 S.Ct. 641 (1984) and Welsh v. Wisconsin, 104 S. Ct. 2091 (1984) involved a warrantlesssearch of a home. In Clifford, the Cliffords' private residence was damaged by fire while theCliffords were out of town. Five hours after the blaze was extinguished, a team of arsoninvestigators conducted a warrantless search of the home, despite actions being taken by theCliffords' insurance agent to secure the house. Clifford, 104 S. Ct. at 644-45. The Courtheld the evidence of arson obtained as a result of the search was inadmissible, since theCliffords' privacy interest made the five-hour delay in searching unreasonable. Id. at 648-49. In Welsh, Welsh's vehicle was observed being driven erratically and finally stopping in afield. Police proceeded to his home and gained entry. He was arrested and taken to the policestation, where he refused to submit to a breatholizer test. Welsh, 104 S. Ct. at 2093-94. TheCourt held that the entry of Welsh's home was prohibited by the fourth amendment, since itcould be justified by neither the "exigent circumstances" exception nor the "hot pursuit"doctrine. Id. at 2097-100. Evidently, the Court does want to see the fourth amendmenttaken seriously in the context of the search of a home. See also Steagald v. United States,451 U.S. 204 (1981) and Payton v. New York, 445 U.S. 573 (1980); but cf Segura v.United States, 104 S. Ct. 3380 (1984) (apartment entered by officers to arrest suspect, andofficers remained in apartment until search warrant could be issued; held, evidence obtainedas result of initial security check upon arrest of suspect and evidence obtained as result ofsearch conducted under warrant was admissible).

In contrast to the four cases (Royer, Place, Clifford and Welsh) upholding fourthamendment claims during the 1982 and 1983 terms, fourteen have either upheld the policepractice or admitted evidence in spite of it. Immigration and Naturalization Service v.Lopez-Mendoza, 104 S. Ct. 3479 (1984); Massachusetts v. Sheppard, 104 S. Ct. 3424(1984); United States v. Leon, 104 S. Ct. 3405 (1984); Segura v. United States, 104 S. Ct.3380 (1984); Immigration and Naturalization Service v. Delgado, 104 S. Ct. 1758 (1984);Oliver v. United States, 104 S. Ct. 1735 (1984); United States v. Jacobsen, 104 S. Ct. 1652(1984); Michigan v. Long, 103 S. Ct. 3469 (1983); Illinois v. Andreas, 103 S. Ct. 3319(1983); Illinois v. Lafayette, 463 U.S. 640 (1983); United States v. Villamonte-Marquez,462 U.S. 579 (1983); Illinois v. Gates, 462 U.S. 213 (1983); Texas v. Brown, 460 U.S. 730

[Vol. 16:831

FOURTH AMENDMENT

an unlawful search since it could yield admissible evidence againstsomeone else, perhaps an organized criminal. If the Court really wanted todiscourage such searches, it would not have created the incentive ofallowing the searches to be used against others.

In conclusion, it seems that the Supreme Court's message to thediligent police officer is this: "When in doubt, search! First, there is a goodchance that we will uphold the search. Second, even if we do not, the searchmay yield evidence against someone from whom we will not hear achallenge. Finally, if all else fails, you can always plead 'good faith.' "109

(1983); United States v. Knotts, 460 U.S. 276 (1983). In most of these cases, the Courtoverturned a lower court's reading of the fourth amendment that would have imposedsignificantly greater restraints on the police than this Court was willing to tolerate. Indeed,in Royer and Place, the Court allowed the police substantially more latitude than the lowercourt in those cases would have allowed. See Loewy, supra note 88.

109. Cf. United States v. Leon, 104 S. Ct. 3405 (1984) and Massachusetts v.Sheppard, 104 S. Ct. 3424 (1984) (allowing presumptively unconstitutionally obtainedevidence to be introduced because it was obtained in what Court called "objective goodfaith," pursuant to warrant issued by magistrate).

19851