1981 may not have been the year of the automobile in Detroit, but so far as students of the law of search and seizure are concerned it was the year of the automobile in the Supreme Court. In the final days of the 1980-81 term, the court decided two important automobile search cases, but unfortunately they do little to clarify an area of the law that has aptly been called a "labyrinth of judicial uncertainty." As a new term of the Supreme Court begins, the police and the lower courts are still trying to figure out what those two July 1 decisions mean.
In one case, Robbins v. California, the police removed two packages from the recessed luggage compartment of a station wagon and opened them. Each package, resembling an oversized cigar box, was wrapped in a green, opaque plastic material and sealed with a strip of tape. Each, it turned out, contained a 15-pound block of marijuana. But the police made the fatal mistake of opening the packages without bothering to obtain a search warrant. Because the marijuana bricks were inside a "closed container," the court struck down their warrantless "search."
In the other case decided the same day, New York v. Belton, the court upheld the warrantless search of the zippered pocket of a leather jacket found on the back seat of a car, although at the time the occupants, as directed by a police officer, had already left the car and been placed under arrest. (The search of the zipped pocket turned up cocaine.) This led Justice John Paul Stevens, who would have sustained the search of the marijuana packages, to chide some of his brethren for reaching "the curious conclusion that a citizen has a greater privacy interest in a package of marijuana enclosed in a plastic wrapper than in the pocket of a leather jacket."
Justice Stevens' characterization of the two cases was clever but misleading. If the leather jacket had been found in the trunk of the car rather than in the "passenger compartment," it could not have been searched without a warrant. On the other hand, if the package of marijuana had been found anywhere in the interior of the car itself, rather than in the trunk--indeed, if a suitcase containing contraband had been found anywhere in the "passenger compartment"--it, too, could have been opened without a warrant as a contemporaneous search incident to a lawful arrest of the car's occupants, even though the occupants were no longer in the car. So holds the Belton case.
Belton constitutes a massive broadening of the search-incident-to- arrest doctrine. It seems to have rendered the passenger compartment of a car a "zone of search license" so long as the police have probable cause to arrest the occupants (even if only for a traffic violation). But the new rule has limits. It does not extend to car trunks.
But what about "hatchbacks," whose "luggage compartments" may be reached through the interior of the vehicle? I share the view of our leading search-and-seizure scholar, Prof. Wayne LaFave of the Illinois Law School, that for purposes of the court's new rule, the "interior" or "passenger compartment" of a vehicle includes all space "reachable" without exiting the vehicle. Thus the entire hatchback seems to have become a "zone of search license."
Having mulled over the Belton case, I am tempted to offer my services to a car manufacturer. Why not build and advertise a "maximum Fourth Amendment protection" hatchback? Such a vehicle would be one equipped with a device that enables the driver to seal off the rear of the hatchback as a police car approaches. A mere push of a button (marked IV of course) and a steel panel would shoot up from the floor. If built according to my specifications, the hatchback could be offered to the public as "the new little car with the old big-car guarantee against warrantless searches." If an American manufacturer adopted my plan, it could advertise not only "Buy American" but "Buy American Constitutional Protection."
There is one problem. The police would contend--and I am afraid that at least some courts would agree-- that the triggering of the steel panel constitutes a "furtive gesture" manifesting a guilty mind. Or the police would argue that anyone who equips his car with such a device and uses it upon spotting a police car is probably hiding contraband in the rear.
There is still another problem. The court was badly fractured in the two "automobile search" cases. And Justice Potter Stewart, who wrote the majority opinion in Belton and the principal opinion in Robbins, has since departed. It is unlikely that his replacement, Justice Sandra Day O'Connor, shares his views. Thus, by the time my specially equipped hatchback could come off the assembly line, the law on which it is based would probably, once again, have changed.