Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

Cert Alert

Gregory G. Garre and David G. Leitch

Fourth Amendment Update

Decided Cases

The Fourth Amendment has been the subject of several curious decisions this term.

Squeeze play-the warrantless search: Bond v. United States, 120 S. Ct. 1462 (2000), produced an unusual lineup. Chief Justice Rehnquist, writing for the majority, held that the Fourth Amendment is violated when a police officer randomly squeezes luggage placed in the overhead bin of a public bus. Justice Breyer, joined by Justice Scalia, dissented. In the final analysis, though, the majority and dissenting opinions seemed to turn more on the Justices' different views on the fate of luggage when placed in the overhead bin than any disagreement over the meaning of the Fourth Amendment itself.

Acknowledging that contraband open to public observation typically is not protected by the Fourth Amendment, Chief Justice Rehnquist wrote that "tactile" observation -i.e., physical inspection -is constitutionally different. Although the officer who squeezed Bond's luggage -leading to the discovery of a "brick" of methamphetamine -did not "frisk" Bond's person, he conducted "a probing tactile examination" of his luggage. This warrantless search, according to the majority, was too much for the Fourth Amendment. Although the Chief Justice conceded that passengers on public transportation should expect that luggage placed in the overhead bin will be "handled" by other passengers or attendants "for one reason or another," he concluded that such passengers typically do not expect that their bags will be felt in "an exploratory manner." Thus, in squeezing Bond's bag without any reasonable suspicion that it contained drugs, the agent violated the Fourth Amendment.

Justice Breyer's dissent turned on a grimmer (some might say more realistic) view of the "treatment that overhead luggage is likely to receive from strangers in a world of travel that is somewhat less gentle than it used to be." He argued that luggage placed in the overhead bin is -at least in today's dog-eat-dog world of public transportation - at the "mercy" of others. To Justice Breyer, then, travelers like Bond should have a reasonable expectation that items placed in the overhead bin may not only shift during travel but may be probed by others -including police officers -during travel. Sounding more and more like the Chief Justice, Breyer also chided the majority about the practical consequences of its decision. "At best, this decision will lead to a constitutional jurisprudence of 'squeezes,' thereby complicating further an already complex Fourth Amendment law. . . . At worst," he continued, "this case will deter law enforcement officers searching for drugs near borders from using even the most nonintrusive touch to help investigate publicly exposed bags."

Anonymous tips: Florida v. J.L., 120 S. Ct. 1375 (2000), resulted in another Fourth Amendment win for the defendant. The question in J.L. was "whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person." Justice Ginsburg, writing for a unanimous Court, answered in the negative. The anonymous tip in J.L. was that a person standing at a particular bus stop wearing a plaid shirt was carrying a gun-which he was. But the Court held that to establish the constitutionally requisite "reasonable suspicion" to stop and frisk a person, a tip must be accompanied by "predictive information" indicating that the "tipster has knowledge of concealed criminal activity," not just knowledge tending to identify the alleged criminal. In so holding, the Court also refused to adopt a "firearm exception" to Terry's familiar "stop and frisk" analysis. Justice Kennedy, joined by the Chief Justice, concurred, emphasizing that "there are many indicia of reliability respecting anonymous tips that we have yet to explore in our cases."

Unprovoked flight from the law: In Illinois v. Wardlow, 120 S. Ct. 673 (2000), the Court, in a 5-4 decision, reasoned that an individual's unprovoked flight on sight of the law is at least "suggestive" of wrongdoing and held that the police had reasonable suspicion to stop and frisk the fleeing defendant in that case. The defendant in Wardlow was seen holding an opaque bag in an area known for heavy drug activity. When a patrol car passed by the area, he took off. The officers followed, stopped him, and, in frisking him, discovered a gun. Chief Justice Rehnquist, writing for the majority, stopped short of holding that unprovoked flight will always give rise to a reasonable suspicion of criminal activity. But he concluded that the defendant's flight in this case -combined with other factors, such as the fact that he was in a heavy drug trafficking area -was enough to provide a reasonable suspicion of wrongdoing and, thus, render constitutional the search resulting in his arrest. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, arguing that even on the facts of this case reasonable suspicion was absent.

Motion to suppress: In a brief per curiam decision issued without argument or merits briefing, Flippo v. West Virginia, 120 S. Ct. 7 (2000), the Court unanimously ruled that the West Virginia courts had erred in refusing to grant a defendant's motion to suppress evidence seized in a warrantless search of a homicide scene. The state court had held that the police officers were entitled to search "anything and everything" within the crime scene-a cabin-including the contents of a briefcase within the area that contained incriminating photographs. The Supreme Court held that this result violated the rule of Mincey v. Arizona, 437 U.S. 385 (1978)-that there is no "murder scene exception" to the Warrant Clause of the Fourth Amendment-and remanded for further consideration of whether the search was justified on other Fourth Amendment grounds.

Cert Granted

Finally, the Supreme Court recently granted certiorari in two Fourth Amendment cases of particular interest. Both cases will be argued next term.

Drug testing: The first, Ferguson v. City of Charleston, South Carolina, No. 99-936, presents a challenge to the discretionary practice of certain public hospitals of testing pregnant women for drug use and, in appropriate cases, using the test results to prompt the arrest of or take other action against such women. The Fourth Circuit upheld the practice under the "special governmental needs" exception to the warrant and probable cause requirements.

Destruction of evidence: The second case, Illinois v. McArthur, No. 99-1132, questions whether police officers may require individuals to exit their homes and prevent them from reentering (unaccompanied by the officers) in order to prevent the removal or destruction of evidence while the police obtain a warrant to search the premises. n


Gregory G. Garre and David G. Leitch are partners in the Washington, D.C., office of Hogan & Hartson L.L.P., who specialize in appellate litigation. They are also contributing editors to Criminal Justice magazine.