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This term, the U.S. Supreme Court has on its docket a series of cases affecting law enforcement’s ability to conduct car stops and searches. The court has already decided some of these cases. Based upon its rulings thus far, it looks like it will be a banner year for law enforcement and its right to detain drivers and conduct a wide range of warrantless searches of automobiles. A checkpoint set up to obtain information First, the U.S. Supreme Court decided Illinois v. Lidster, 124 S. Ct. 885 (Jan. 13, 2004). The issue raised in Lidster was whether the police can constitutionally set up a highway checkpoint to obtain information from motorists about a hit-and-run accident occurring about one week earlier at the same location and time of night. At the checkpoint, officers would stop each vehicle for 10 to 15 seconds and ask the occupants whether they had seen anything happen there the previous weekend. They also handed each driver a flier describing and requesting information about the incident. On the night of the checkpoint, Robert Lidster was probably in no mood to be stopped. As he approached the checkpoint, Lidster swerved his minivan, nearly hitting an officer. Even from a distance, the officer smelled alcohol on Lidster’s breath. Another officer administered a sobriety test. Lidster failed. Lidster was tried and convicted of driving under the influence of alcohol. He challenged the lawfulness of his arrest and conviction, claiming that the evidence was obtained through an illegal checkpoint stop. The trial court disagreed, but the Illinois appellate and supreme courts held that the stop was unconstitutional. The Illinois Supreme Court believed that the U.S. Supreme Court’s decision in Indianapolis v. Edmond, 531 U.S. 32 (2000), required it to find the stop unconstitutional. The U.S. Supreme Court saw things differently. There are checkpoints and there are checkpoints. In Edmond, the court struck down the checkpoint because it was set up primarily for general “crime control” purposes. Using drug-sniffing dogs, the purpose of the checkpoint in Edmond was to detect evidence of narcotics crimes by examining the outside of cars being stopped. However, the purpose of the automobile checkpoint in Lidster was different. In that case, the “stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others.” In other words, it was a “good citizen” stop. The police hoped that somebody they stopped during the checkpoint could help them solve the hit-and-run that had taken place one week earlier. Where does this case leave the law of checkpoint searches for automobiles? Several things are now clear. First, as the U.S. Supreme Court explicitly states in Lidster, “[t]he Fourth Amendment does not treat a motorist’s car as his castle.” 124 S. Ct. at 889. Rather, there are occasions when law enforcement can stop cars without individualized suspicion. Drivers have lower expectations of privacy. Even though some drivers feel an emotional attachment to their vehicles, the Constitution does not put cars on the same privacy scale as homes subject to search. Second, drivers are expected to be good citizens. As Justice Stephen Breyer puts it in his opinion, “citizens will often react positively when police simply ask for their help as ‘responsible citizens’ to ‘give whatever information they may have to aid in law enforcement.’” Lidster, 124 S. Ct. at 889, quoting Miranda v. Arizona, 384 U.S. 436, 477-478 (1966). By stopping vehicles, law enforcement is giving citizens a chance to do what they should want to do naturally-help law enforcement. Third, the reasonableness of a checkpoint search is determined by balancing several factors: (1) the reason for the stops; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty. See Brown v. Texas, 443 U.S. 47, 51 (1979). Using these factors, the court had no problem upholding the checkpoint stop in Lidster. That stop was designed to obtain information about a serious crime that had happened on the highway one week earlier. The manner in which the stop was conducted was specifically designed to get such information. Finally, each stop required only a brief wait in line, with only seconds of contact with the police. Lidster was not the only case on the court’s docket this term addressing the Fourth Amendment interests of motorists. Earlier in the term, the court decided Maryland v. Pringle, 124 S. Ct. 795 (2003). In Pringle, the court addressed the issue of whether an officer has probable cause to arrest the driver and all occupants of a vehicle when they find drugs in the car and none of the parties in the car admits ownership of the drugs at the time of the search. A unanimous court held that the officer did have probable cause. The car in Pringle was a treasure-trove of evidence of illegal narcotics trafficking. After a routine speeding stop, an officer found $763 of rolled-up cash in the glove compartment and five glassine baggies of cocaine between the back-seat armrest and back seat. Not surprisingly, none of the car’s occupants jumped up to volunteer that the contraband belonged to him. The officer then arrested all of them. Writing for the court, Chief Justice William Rehnquist held that the officer’s conduct was proper. It is well established that officers may make warrantless arrests of individuals in a public place for a felony or a misdemeanor committed in the officer’s presence, if those arrests are supported by probable cause. See also United States v. Watson, 423 U.S. 411 (1976). In Pringle, the court reiterated that probable cause remains a “fluid concept.” Not willing to give it a precise definition, the Supreme Court simply reaffirmed that courts must “examine the events leading up to the arrest and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Pringle, 124 S. Ct. at 800, quoting Ornelas v. United States, 517 U.S. 690, 696 (1996). In Pringle, the court held that it was entirely reasonable to infer from the fact that the three occupants were in the car with the drugs and money that they all had knowledge of, and exercised dominion and control, over the cocaine. Even though some people might classify this as “guilt-by-association,” the court rejected this characterization. Unlike in a house or tavern, the close proximity of all occupants in a car to the contraband established sufficient probable cause for the arrest. While the court did not establish a per se rule that everyone in a car may be arrested when narcotics are found, certainly riders need now beware. They may be taken for more of a ride than they expected. Finally, the Supreme Court recently decided United States v. Flores-Montano, 2004 U.S. Lexis 2548 (March 30, 2004). Once again, this case involved the search of an automobile. This search, however, was more extensive. When the defendant tried to drive his 1987 Ford Taurus station wagon into the United States from Mexico, he was greeted by curious customs inspectors. The car was taken to a secondary inspection station where a customs inspector began to inspect the car’s gas tank. With the help of a mechanic, the inspector raised the car on a hydraulic lift and disconnected and removed the gas tank from the vehicle’s undercarriage. When he finally removed the seal of the gas tank, the inspector found 37 kilograms of marijuana bricks. When Flores-Montano was indicted for importing marijuana, he challenged the removal of the gas tank as a violation of his Fourth Amendment rights. The government conceded it did not have reasonable suspicion for the search, but claimed that the search was justified nonetheless as a routine border search. The 9th U.S. Circuit Court of Appeals agreed with the defendant and held that the search was impermissible. A unanimous Supreme Court reversed. Border searches do not need reasonable suspicion The court held that border searches do not require reasonable suspicion. Rather, “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself . . . are reasonable simply by virtue of the fact that they occur at the border.” Flores-Montano, 2004 U.S. Lexis 2548 at 7, quoting United States v. Ramsey, 431 U.S. 606, 616 (1977). Especially when studies show that cars carrying drugs flow across our borders at the rate of more than 3,200 vehicles per year, with 25% of those seized cars hiding drugs in their gas tanks, border officials are allowed to take reasonable means to prevent this threat to our nation’s security. Accordingly, and in line with the court’s other decisions this term, the Supreme Court in Flores-Montano once again upheld the right of law enforcement to engage in the seizure and search of an automobile. The Supreme Court has one more case to decide this term relating to searches of automobiles. In United States v. Thorton, 325 F.3d 189 (4th Cir. 2003), cert. granted, 2003 U.S. Lexis 8001 (Nov. 3, 2003), the issue is whether a defendant needs to be in or near his vehicle for a search to be conducted incident to his arrest. If the other cases this term are any indication, the court is likely to take a generous view of these warrantless searches as well. Cars are not our castles and the Fourth Amendment is not an impregnable wall protecting them or us from search and seizure by the police. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director for the Center for Ethical Advocacy, Loyola Law School, Los Angeles.

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