No. 89-1690

on writ of certiorari to the court of appeal of california, fourth appellate district


[May 30, 1991]

Justice Scalia, concurring in the judgment.

I agree with the dissent that it is anomalous for a briefcase to be protected by the "general requirement" of a prior warrant when it is being carried along the street, but for that same briefcase to become unprotected as soon as it is carried into an automobile. On the other hand, I agree with the Court that it would be anomalous for a locked compartment in an automobile to be unprotected by the "general requirement" of a prior warrant, but for an unlocked briefcase within the automobile to be protected. I join in the judgment of the Court because I think its holding is more faithful to the text and tradition of the Fourth Amendment, and if these anomalies in our jurisprudence are ever to be eliminated that is the direction in which we should travel.

The Fourth Amendment does not by its terms require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are "unreasonable." What it explicitly states regarding warrants is by way of limitation upon their issuance rather than requirement of their use. See Wakely v. Hart, 6 Binney 316, 318 (Pa. 1814). For the warrant was a means of insulating officials from personal liability assessed by colonial juries. An officer who searched or seized without a warrant did so at his own risk; he would be liable for trespass, including exemplary damages, unless the jury found that his action was "reasonable." Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 11781180 (1991); Huckle v. Money, 95 Eng. Rep. 768 (K. B. 1763). If, however, the officer acted pursuant to a proper warrant, he would be absolutely immune. See Bell v. Clapp, 10 Johns. 263 (N. Y. 1813); 4 W. Blackstone, Commentaries 288 (1769). By restricting the issuance of warrants, the Framers endeavored to preserve the jury's role in regulating searches and seizures. Amar, supra; Posner, Rethinking the Fourth Amendment, 1981 S. Ct. Rev., 49, 72-73; see also T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).

Although the Fourth Amendment does not explicitly impose the requirement of a warrant, it is of course textually possible to consider that implicit within the requirement of reasonableness. For some years after the (still continuing) explosion in Fourth Amendment litigation that followed our announcement of the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone. (The opinions preferring a warrant involved searches of structures.) Compare Harris v. United States, 331 U.S. 145 (1947) with Johnson v. United States, 333 U.S. 10 (1948); compare Trupiano v. United States, 334 U.S. 699 (1948) with United States v. Rabinowitz, 339 U.S. 56 (1950). See generally Chimel v. California, 395 U.S. 752 (1969). By the late 1960's, the preference for a warrant had won out, at least rhetorically. See Chimel; Coolidge v. New Hampshire, 403 U.S. 443 (1971).

The victory was illusory. Even before today's decision, the "warrant requirement" had become so riddled with ex ceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including "searches incident to arrest . . . automobile searches . . . border searches . . . administrative searches of regulated businesses . . . exigent circumstances . . . search[es] incident to nonarrest when there is probable cause to arrest . . . boat boarding for document checks . . . welfare searches . . . inventory searches . . . airport searches . . . school search[es]. . . ." Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473-1474 (1985) (footnotes omitted). Since then, we have added at least two more. California v. Carney, 471 U.S. 386 (1985) (searches of mobile homes); O'Connor v. Ortega, 480 U.S. 709 (1987) (searches of offices of government employees). Our intricate body of law regarding "reasonable expectation of privacy" has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth Amendment "search" and therefore not subject to the general warrant requirement. Cf. id., at 729 (Scalia, J., concurring in judgment).

Unlike the dissent, therefore, I do not regard today's holding as some momentous departure, but rather as merely the continuation of an inconsistent jurisprudence that has been with us for years. Cases like United States v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753 (1979), have taken the "preference for a warrant" seriously, while cases like United States v. Ross, 456 U.S. 798 (1982), and Carroll v. United States, 267 U.S. 132 (1925), have not. There can be no clarity in this area unless we make up our minds, and unless the principles we express comport with the actions we take.

In my view, the path out of this confusion should be sought by returning to the first principle that the "reasonableness" requirement of the Fourth Amendment affords the protection that the common law afforded. See County of Riverside v. McLaughlin, 500 U. S. —, — (1991) (slip op. 2) (Scalia, J., dissenting); Peoples v. Chiagles, 237 N. Y. 193, 195, 142 N. E. 583 (1923) (Cardozo, J.). Cf. California v. Hodari D., 499 U. S. —, — (1991) (slip op. 2-5). I have no difficulty with the proposition that that includes the requirement of a warrant, where the common law required a warrant; and it may even be that changes in the surrounding legal rules (for example, elimination of the common-law rule that reasonable, good-faith belief was no defense to absolute liability for trespass, Little v. Barreme, 2 Cranch 169 (1804) (Marshall, C. J.); see generally Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1486-1487 (1987)), may make a warrant indispensable to reasonableness where it once was not. But the supposed "general rule" that a warrant is always required does not appear to have any basis in the common law see, e. g., Carroll, supra, at 150-153; Gelston v. Hoyt, 3 Wheat. 246, 310-311 (1818) (Story, J.); Wakely, supra, and confuses rather than facilitates any attempt to develop rules of reasonableness in light of changed legal circumstances, as the anomaly eliminated and the anomaly created by today's holding both demonstrate.

And there are more anomalies still. Under our precedents (as at common law), a person may be arrested outside the home on the basis of probable cause, without an arrest warrant. United States v. Watson, 423 U.S. 411, 418-421 (1976); Rohan v. Sawin, 59 Mass. 281 (1851). Upon arrest, the person, as well as the area within his grasp, may be searched for evidence related to the crime. Chimel v. California, 395 U.S. 752, 762-763 (1969); People v. Chiagles, supra (collecting authority). Under these principles, if a known drug dealer is carrying a briefcase reasonably believed to contain marijuana (the unauthorized possession of which is a crime), the police may arrest him and search his person on the basis of probable cause alone. And, under our precedents, upon arrival at the station house, the police may inventory his possessions, including the briefcase, even if there is no reason to suspect that they contain contraband. Illinois v. Lafayette, 462 U.S. 640 (1983). According to our current law, however, the police may not, on the basis of the same probable cause, take the less intrusive step of stopping the individual on the street and demanding to see the contents of his briefcase. That makes no sense a priori, and in the absence of any common-law tradition supporting such a distinction, I see no reason to continue it.

* * *

I would reverse the judgment in the present case, not because a closed container carried inside a car becomes subject to the "automobile" exception to the general warrant requirement, but because the search of a closed container, outside a privately owned building, with probable cause to believe that the container contains contraband, and when it in fact does contain contraband, is not one of those searches whose Fourth Amendment reasonableness depends upon a warrant. For that reason I concur in the judgment of the Court.