Bright lines on the road: the Fourth Amendment, the automatic companion rule, the "automatic container" rule, and a new rule for drug- or firearm-related traffic stop companion searches incident to lawful arrest.

 
INTRODUCTION 
 
I.   CURRENT LAW, HISTORICAL DEVELOPMENT, AND UNRESOLVED 
     QUESTIONS 
     A. The State of the Law 
     B. History & Development of the Fourth Amendment as It 
        Applies to Automobiles 
        1. What is a Search? 
        2. Searches & Seizures: The Requirement of 
           Reasonableness 
        3. When a Warrant is Not Required 
        4. Automobile Searches Under the Fourth Amendment 
     C. Inconsistencies & Unresolved Questions 
 
II.  PATCHING LEGAL POTHOLES IN THE AUTOMOBILE CONTEXT 
     A. Automatic Companion Rule 
        1. Explaining the Rule 
        2. Basis of the Rule 
           a. Safety of the Officer and the Public 
           b. A Bright-Line Rule for Law Enforcement 
           c. Common Sense 
           d. Minimal Additional Intrusion 
        3. Criticism and Defense of the Rule 
           a. It Relies upon Improper Guilt by Association 
           b. It Fails to Require Individualized Suspicion 
     B. Automatic Container Rule 
        1. Explaining the Rule 
        2. Basis of the Rule 
        3. Criticism and Defense of the Rule 
           a. A Passenger's Belongings Cannot Be Searched If 
              They Are Not Independently Subject to Search 
           b. Permitting Warrantless Automobile Searches Is 
              Inaccurate and Inefficient 
 
III. BRIDGING THE GAP: A "FIREARMS AND NARCOTICS PASSENGER 
     SEARCH RULE" 
     A. Explaining the Rule 
     B. Basis of the Rule 
        1. Danger and Destruction 
        2. A Bright-Line Rule 
        3. Evidence-Gathering 
        4. Minimal Additional Intrusion 
     C. Criticism and Defense of the Rule 
        1. A Search of a Passenger Ought to Require Probable 
           Cause 
        2. This Rule Would Encourage Pretextual Stops 
 
CONCLUSION 

INTRODUCTION

For better or for worse, many courts and commentators agree: the Supreme Court has been moving away from contextualized, careful review of intrusions into the Fourth Amendment rights in automobiles. (1) Significant debate and disagreement has resulted in splits among the federal and state courts as to the appropriate limits of law enforcement searches of a passenger's person and belongings where the driver of a vehicle has been arrested and there is no reasonable suspicion that the passenger is involved in criminal activity.

The Supreme Court has carved out significant exceptions to Fourth Amendment warrant and probable cause requirements in the context of automobile searches. The full scope of enforcement authority to search an automobile and its passengers when the driver has been arrested remains uncertain. If an officer arrests the driver of a vehicle based upon either a firearm or drug charge, or finds either of those items during the course of the arrest, can the officer, without more, frisk the passengers for weapons? Can the officer, without more, search a bag that might contain a weapon or narcotics when it is being held by a passenger? Even if the answer to both of the previous questions is "yes," can the officer, without more, search the passengers?

Two state court cases present the Supreme Court with the opportunity to forge new bright-line rules in the dangerous context of roadside stops by providing law enforcement officers greater authority to search automobile passengers and their belongings subsequent to the arrest of the driver of the automobile. In Owens v. Commonwealth (2) and State v. Mercier, (3) traffic stops led to the arrest of a driver and to, respectively, a pat down of a passenger for weapons, and a search of belongings held by a passenger. Through Owens and Mercier, the Court could resolve the disagreement among the courts and support both the "automatic companion" line of reasoning extending from Terry v. Ohio (4) frisks and what one might call an "automatic container" (5) line of reasoning stemming from Wyoming v. Houghton. (6) Yet, while potentially providing a boon to law enforcement, the rules as described in Owens and Mercier might not go far enough. There is a gap between them: though the officer could search the passenger's belongings for weapons or evidence, and could pat down the passenger for concealed weapons, (7) he could not search the passenger for concealed evidence. In the dangerous setting of roadside stops, where the driver has been arrested and firearms or narcotics are involved, it is in society's interest both to protect the law enforcement officer and to avoid unnecessarily handicapping efforts to combat the drug trade.

This Note argues that Fourth Amendment law respecting automobile stop searches would be substantially clarified if differences among the courts were resolved in favor of the automatic companion rule and the "automatic container" rule. To do so, the Court should close the remaining gap between those two rules by adopting a third rule, which I have termed "the firearms and narcotics passenger search rule."

Part I outlines current law, as described by the Supreme Court, in the context of auto stop searches, discusses the historical development of Fourth Amendment law in the auto stop context, and identifies unresolved questions and inconsistencies in the law. In Part II, I propose resolving ambiguities in auto stop searches in favor of a clear bright-line rule by adopting the automatic companion rule of Owens, which allows officers to frisk companions of arrestees, and the automatic container rule of Mercier, which allows officers to search passengers' belongings where the officer is conducting a search of the vehicle incident to the lawful arrest of the driver. In Part III, I propose further closing the gap by joining and extending these two bright-line rules to create a single, easily applied "firearms and narcotics companion search rule." (8)