California v. Acevedo/Concurrence Scalia

by Antonin Scalia

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, 1178-1180 (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, 34 S.Ct. 341, 58 L.Ed. 652 (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, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) with Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); compare Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948) with United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). See generally Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (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, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The victory was illusory. Even before today's decision, the "warrant requirement" had become so riddled with exceptions 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, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (searches of mobile homes); O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (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, 107 S.Ct., at 1504 (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, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), have taken the "preference for a warrant" seriously, while cases like United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (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. ----, ----, 111 S.Ct. 1661, 1672, --- L.Ed.2d ---- (1991) (SCALIA, J., dissenting); People v. Chiagles, 237 N.Y. 193, 195, 142 N.E. 583 (1923) (Cardozo, J.). Cf. California v. Hodari D., 499 U.S. ----, ---- - ----, 111 S.Ct. 1547, 1549-1551, 113 L.Ed.2d 690 (1991). 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 170, 2 L.Ed. 243 (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, 267 U.S., at 150-153, 45 S.Ct., at 284-85; Gelston v. Hoyt, 3 Wheat. 246, 310-311, 4 L.Ed. 381 (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, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (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, 89 S.Ct. 2034, 2039-2040, 23 L.Ed.2d 685 (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, 103 S.Ct. 2605, 77 L.Ed.2d 65 (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.

Justice WHITE, dissenting.

Agreeing as I do with most of Justice STEVENS' opinion and with the result he reaches, I dissent and would affirm the judgment below.

Justice STEVENS, with whom Justice MARSHALL joins, dissenting.

At the end of its opinion, the Court pays lip service to the proposition that should provide the basis for a correct analysis of the legal question presented by this case: It is " 'a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." ' Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnote omitted)." Ante, at 580.

Relying on arguments that conservative judges have repeatedly rejected in past cases, the Court today-despite its disclaimer to the contrary, ibid.-enlarges the scope of the automobile exception to this "cardinal principle," which undergirded our Fourth Amendment jurisprudence prior to the retirement of the author of the landmark opinion in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). As a preface to my response to the Court's arguments, it is appropriate to restate the basis for the warrant requirement, the significance of the Chadwick case, and the reasons why the limitations on the automobile exception that were articulated in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), represent a fair accommodation between the basic rule requiring prior judicial approval of searches and the automobile exception.

* The Fourth Amendment is a restraint on Executive power. The Amendment constitutes the Framers' direct constitutional response to the unreasonable law enforcement practices employed by agents of the British Crown. See Weeks v. United States, 232 U.S. 383, 389-391, 34 S.Ct. 341, 343-344, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 624-625, 6 S.Ct. 524, 529, 29 L.Ed. 746 (1886); 1 W. LaFave, Search and Seizure 3-5 (2d ed. 1987). Over the years-particularly in the period immediately after World War II and particularly in opinions authored by Justice Jackson after his service as a special prosecutor at the Nuremburg trials the Court has recognized the importance of this restraint as a bulwark against police practices that prevail in totalitarian regimes. See, e.g., United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 371, 92 L.Ed. 436 (1948).

This history is, however, only part of the explanation for the warrant requirement. The requirement also reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual's personal effects should be made by a neutral magistrate rather than an agent of the Executive. In his opinion for the Court in Johnson v. United States, id., at 13-14, 68 S.Ct., at 369, Justice Jackson explained:

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

Our decisions have always acknowledged that the warrant requirement imposes a burden on law enforcement. And our cases have not questioned that trained professionals normally make reliable assessments of the existence of probable cause to conduct a search. We have repeatedly held, however, that these factors are outweighed by the individual interest in privacy that is protected by advance judicial approval. The Fourth Amendment dictates that the privacy interest is paramount, no matter how marginal the risk of error might be if the legality of warrantless searches were judged only after the fact.

In the concluding paragraph of his opinion in Chadwick, Chief Justice Burger made the point this way:

"Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of [their luggage] were invaded." 433 U.S., at 15-16, 97 S.Ct., at 2485-2486.

In Chadwick, the Department of Justice had mounted a frontal attack on the warrant requirement. The Government's principal contention was that "the Fourth Amendment Warrant Clause protects only interests traditionally identified with the home." Id., at 6, 97 S.Ct., at 2481. We categorically rejected that contention, relying on the history and text of the amendment, ^[1] the policy underlying the warrant requirement, ^[2] and a line of cases spanning over a century of our jurisprudence. ^[3] We also rejected the Government's alternative argument that the rationale of our automobile search cases demonstrated the reasonableness of permitting warrantless searches of luggage.

We concluded that neither of the justifications for the automobile exception could support a similar exception for luggage. We first held that the privacy interest in luggage is "substantially greater than in an automobile." Id., at 13, 97 S.Ct., at 2484. Unlike automobiles and their contents, we reasoned, "[l]uggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis." Ibid. Indeed, luggage is specifically intended to safeguard the privacy of personal effects, unlike an automobile, "whose primary function is transportation." Ibid.

We then held that the mobility of luggage did not justify creating an additional exception to the Warrant Clause. Unlike an automobile, luggage can easily be seized and detained pending judicial approval of a search. Once the police have luggage "under their exclusive control, there [i]s not the slightest danger that the [luggage] or its contents could [be] removed before a valid search warrant could be obtained. . . . With the [luggage] safely immobilized, it [i]s unreasonable to undertake the additional and greater intrusion of a search without a warrant" (footnote omitted). Ibid.

Two Terms after Chadwick, we decided a case in which the relevant facts were identical to those before the Court today. In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the police had probable cause to search a green suitcase that had been placed in the trunk of a taxicab at the Little Rock Airport. Several blocks from the airport, they stopped the cab, arrested the passengers, seized the suitcase and, without obtaining a warrant, opened and searched it.

The Arkansas Supreme Court held that the search was unconstitutional. Relying on Chadwick, the state court had no difficulty in concluding that there was "nothing in this set of circumstances that would lend credence to an assertion of impracticability in obtaining a search warrant." Sanders v. State, 262 Ark. 595, 600, 559 S.W.2d 704, 706 (1977). Over the dissent of Justice BLACKMUN and then Justice REHNQUIST, both of whom had also dissented in Chadwick, this Court affirmed. In his opinion for the Court, Justice Powell noted that the seizure of the green suitcase was entirely proper, ^[4] but that the State nevertheless had the burden of justifying the warrantless search, ^[5] and that it had "failed to carry its burden of demonstrating the need for warrantless searches of luggage properly taken from automobiles." 442 U.S., at 763, 99 S.Ct., at 2592.

Chief Justice Burger wrote separately to identify the distinction between cases in which police have probable cause to believe contraband is located somewhere in a vehicle-the typical automobile exception case-and cases like Chadwick and Sanders in which they had probable cause to search a particular container before it was placed in the car. He wrote:

"Because the police officers had probable cause to believe that respondent's green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 U.S. 1 [97 S.Ct. 2476, 53 L.Ed.2d 538] (1977). The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner's arrest occurs in a public place. Whether arrested in a hotel lobby, an airport, a railroad terminal, or on a public street, as here, the owner has the right to expect that the contents of his luggage will not, without his consent, be exposed on demand of the police. . . .

"The breadth of the Court's opinion and its repeated references to the 'automobile' from which respondent's suitcase was seized at the time of his arrest, however, might lead the reader to believe-as the dissenters apparently do that this case involves the 'automobile' exception to the warrant requirement. See ante, [442 U.S.,] at 762-765, and n. 14 [99 S.Ct., at 2592-2594 and n. 14]. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband." 442 U.S., at 766-767, 99 S.Ct., at 2594-2595 (Burger, C.J., concurring in judgment).

Chief Justice Burger thus carefully explained that Sanders, which the Court overrules today, "simply d[id] not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car's structure." Id., at 767, 99 S.Ct., at 2595. We confronted that question in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). ^[6]

We held in Ross that "the scope of the warrantless search authorized by [the automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant." See id., at 825, 102 S.Ct., at 2173. The inherent mobility of the vehicle justified the immediate search without a warrant, but did not affect the scope of the search. See id., at 822, 102 S.Ct., at 2171. Thus, the search could encompass containers, which might or might not conceal the object of the search, as well as the remainder of the vehicle. See id., at 821, 102 S.Ct., at 2171.

Our conclusion was supported not only by prior cases defining the proper scope of searches authorized by warrant, as well as cases involving the automobile exception, but also by practical considerations that apply to searches in which the police have only generalized probable cause to believe that contraband is somewhere in a vehicle. We explained that, in such instances, "prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests." Id., at 821, n. 28, 102 S.Ct., at 2171, n. 28. Indeed, because "the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle," the most likely result would be that "the vehicle would need to be secured while a warrant was obtained." Ibid.

These concerns that justified our holding in Ross are not implicated in cases like Chadwick and Sanders in which the police have probable cause to search a particular container rather than the entire vehicle. Because the police can seize the container which is the object of their search, they have no need either to search or to seize the entire vehicle. Indeed, as even the Court today recognizes, they have no authority to do so. See 456 U.S., at 824, 102 S.Ct., at 2172; ante, at 580.

In reaching our conclusion in Ross, we therefore did not retreat at all from the holding in either Chadwick or Sanders. Instead, we expressly endorsed the reasoning in Chief Justice Burger's separate opinion in Sanders. 456 U.S., at 813-814, 102 S.Ct., at 2167. ^[7] We explained repeatedly that Ross involved the scope of the warrantless search authorized by the automobile exception, id., at 800, 809, 817, 825, 102 S.Ct., at 2160, 2165, 2169, 2173, and, unlike Chadwick and Sanders, did not involve the applicability of the exception to closed containers. 456 U.S., at 809-817, 102 S.Ct., at 2165-2168.

Thus, we recognized in Ross that Chadwick and Sanders had not created a special rule for container searches, but rather had merely applied the cardinal principle that warrantless searches are per se unreasonable unless justified by an exception to the general rule. See 456 U.S., at 811-812, 102 S.Ct., at 2165-2166. ^[8] Ross dealt with the scope of the automobile exception; Chadwick and Sanders were cases in which the exception simply did not apply.

In its opinion today, the Court recognizes that the police did not have probable cause to search respondent's vehicle and that a search of anything but the paper bag that respondent had carried from Daza's apartment and placed in the trunk of his car would have been unconstitutional. Ante, at 580. Moreover, as I read the opinion, the Court assumes that the police could not have made a warrantless inspection of the bag before it was placed in the car. See ibid. Finally, the Court also does not question the fact that, under our prior cases, it would have been lawful for the police to seize the container and detain it (and respondent) until they obtained a search warrant. Ante, at 575. Thus, all of the relevant facts that governed our decisions in Chadwick and Sanders are present here whereas the relevant fact that justified the vehicle search in Ross is not present.

The Court does not attempt to identify any exigent circumstances that would justify its refusal to apply the general rule against warrantless searches. Instead, it advances these three arguments: First, the rules identified in the foregoing cases are confusing and anomalous. Ante, at 576-579. Second, the rules do not protect any significant interest in privacy. Ante, at 573-576. And, third, the rules impede effective law enforcement. Ante, at 576-577. None of these arguments withstands scrutiny.

The "Confusion"

In the nine years since Ross was decided, the Court has considered three cases in which the police had probable cause to search a particular container and one in which they had probable cause to search two vehicles. The decisions in all four of those cases were perfectly straightforward and provide no evidence of confusion in the state or lower federal courts.

In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we held that, although reasonable suspicion justifies the temporary detention of an airline passenger's luggage, the seizure in that particular case was unreasonable because of the prolonged delay in ascertaining the existence of probable cause. In the course of our opinion, we noted that the then-recent decision in Ross had not modified the holding in Sanders. 462 U.S., at 701, n. 3, 103 S.Ct., at 2642, n. 3. We also relied on Chadwick for our conclusion that the temporary seizure of luggage is substantially less intrusive than a search of its contents. 462 U.S., at 706-707, 103 S.Ct., at 2694.

In Oklahoma v. Castleberry, 471 U.S. 146, 105 S.Ct. 1859, 85 L.Ed.2d 112 (1985), police officers had probable cause to believe the defendant carried narcotics in blue suitcases in the trunk of his car. After arresting him, they opened the trunk, seized the suitcases, and searched them without a warrant. The state court held that the search was invalid, explaining:

"If the officer has probable cause to believe there is contraband somewhere in the car, but he does not know exactly where, he may search the entire car as well as any containers found therein. See United States v. Ross, 456 U.S. 798 [102 S.Ct. 2157, 72 L.Ed.2d 572] . . . (1982); Chambers v. Maroney, 399 U.S. 42 [90 S.Ct. 1975] . . . (1970); Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543] . . . (1925). If, on the other hand, the officer only has probable cause to believe there is contraband in a specific container in the car, he must detain the container and delay his search until a search warrant is obtained. See United States v. Ross, 456 U.S. 798 [102 S.Ct. 2157, 72 L.Ed.2d 572] . . . (1982); Arkansas v. Sanders, 442 U.S. 753 [99 S.Ct. 2586, 61 L.Ed.2d 235] . . . (1979); United States v. Chadwick, 433 U.S. 1 [97 S.Ct. 2476, 53 L.Ed.2d 538] . . . (1977)." Castleberry v. State, 678 P.2d 720, 724 (Okla.1984).

This Court affirmed by an equally-divided court. 471 U.S. 146, 105 S.Ct. 1859, 85 L.Ed.2d 112 (1985).

In the case the Court decides today, the California Court of Appeal also had no difficulty applying the critical distinction. Relying on Chadwick, it explained that "the officers had probable cause to believe marijuana would be found only in a brown lunch bag and nowhere else in the car. We are compelled to hold they should have obtained a search warrant before opening it." 216 Cal.App.3d 586, 592, 265 Cal.Rptr. 23, 27 (1990).

In the case in which the police had probable cause to search two vehicles, United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), ^[9] we rejected the respondent's reliance on Chadwick with a straightforward explanation of why that case, unlike Ross, did not involve an exception to the warrant requirement. We first expressed our agreement with the Court of Appeals that the Customs officers who had conducted the search had probable cause to search the vehicles. Id., at 482, 105 S.Ct., at 884. We then explained:

"Under the circumstances of this case, respondents' reliance on Chadwick is misplaced. . . . Chadwick . . . did not involve the exception to the warrant requirement recognized in Carroll v. United States, supra, because the police had no probable cause to believe that the automobile, as contrasted to the footlocker, contained contraband. See 433 U.S., at 11-12 [97 S.Ct., at 2483-2484]. This point is underscored by our decision in Ross, which held that notwithstanding Chadwick police officers may conduct a warrantless search of containers discovered in the course of a lawful vehicle search. See 456 U.S., at 810-814 [102 S.Ct., at 2165-2167]. Given our conclusion that the Customs officers had probable cause to believe that the pickup trucks contained contraband, Chadwick is simply inapposite. See 456 U.S., at 817 [102 S.Ct., at 2168]." 469 U.S., at 482-483, 105 S.Ct., at 884-885.

The decided cases thus provide no support for the Court's concern about "confusion." The Court instead relies primarily on predictions that were made by Justice BLACKMUN in his dissenting opinions in Chadwick and Sanders. ^[10] The Court, however, cites no evidence that these predictions have in fact materialized or that anyone else has been unable to understand the "inherent opaqueness," ante, at 579, of this uncomplicated issue. The only support offered by the Court, other than the unsubstantiated allegations of prior dissents, is three law review comments and a sentence from Professor LaFave's treatise. None of the law review pieces criticizes the holdings in Chadwick and Sanders. ^[11] The sentence from Professor LaFave's treatise, at most, indicates that, as is often the case, there may be some factual situations at the margin of the relevant rules that are difficult to decide. Moreover, to the extent Professor LaFave criticizes our jurisprudence in this area, he is critical of Ross rather than Chadwick or Sanders. And he ultimately concludes that even Ross was correctly decided. See 3 W. LaFave, Search and Seizure 55-56 (2d ed. 1987).

The Court summarizes the alleged "anomaly" created by the coexistence of Ross, Chadwick, and Sanders with the statement that "the more likely the police are to discover drugs in a container, the less authority they have to search it." Ante, at 577. This juxtaposition is only anomalous, however, if one accepts the flawed premise that the degree to which the police are likely to discover contraband is correlated with their authority to search without a warrant. Yet, even proof beyond a reasonable doubt will not justify a warrantless search that is not supported by one of the exceptions to the warrant requirement. And, even when the police have a warrant or an exception applies, once the police possess probable cause, the extent to which they are more or less certain of the contents of a container has no bearing on their authority to search it.

To the extent there was any "anomaly" in our prior jurisprudence, the Court has "cured" it at the expense of creating a more serious paradox. For, surely it is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street yet to permit a search once the owner has placed the briefcase in the locked trunk of his car. One's privacy interest in one's luggage can certainly not be diminished by one's removing it from a public thoroughfare and placing it-out of sight-in a privately owned vehicle. Nor is the danger that evidence will escape increased if the luggage is in a car rather than on the street. In either location, if the police have probable cause, they are authorized to seize the luggage and to detain it until they obtain judicial approval for a search. Any line demarking an exception to the warrant requirement will appear blurred at the edges, but the Court has certainly erred if it believes that, by erasing one line and drawing another, it has drawn a clearer boundary.

The Court's statement that Chadwick and Sanders provide only "minimal protection to privacy," ante, at 576, is also unpersuasive. Every citizen clearly has an interest in the privacy of the contents of his or her luggage, briefcase, handbag or any other container that conceals private papers and effects from public scrutiny. That privacy interest has been recognized repeatedly in cases spanning more than a century. See, e.g., Chadwick, 433 U.S., at 6-11, 97 S.Ct., at 2480-2484; United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282 (1970); Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878).

Under the Court's holding today, the privacy interest that protects the contents of a suitcase or a briefcase from a warrantless search when it is in public view simply vanishes when its owner climbs into a taxicab. Unquestionably the rejection of the Sanders line of cases by today's decision will result in a significant loss of individual privacy.

To support its argument that today's holding works only a minimal intrusion on privacy, the Court suggests that "[i]f the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross." Ante, at 574-575. As I have already noted, see n. 9, supra, this fear is unexplained and inexplicable. Neither evidence uncovered in the course of a search nor the scope of the search conducted can be used to provide post hoc justification for a search unsupported by probable cause at its inception.

The Court also justifies its claim that its holding inflicts only minor damage by suggesting that, under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the police could have arrested respondent and searched his bag if respondent had placed the bag in the passenger compartment of the automobile instead of the trunk. In Belton, however, the justification for stopping the car and arresting the driver had nothing to do with the subsequent search, which was based on the potential danger to the arresting officer. The holding in Belton was supportable under a straightforward application of the automobile exception. See Robbins v. California, 453 U.S. 420, 449-453, 101 S.Ct. 2841, 2857-2859, 69 L.Ed.2d 744 (1981) (STEVENS, J., dissenting). I would not extend Belton's holding to this case, in which the container-which was protected from a warrantless search before it was placed in the car-provided the only justification for the arrest. Even accepting Belton's application to a case like this one, however, the Court's logic extends its holding to a container placed in the trunk of a vehicle, rather than in the passenger compartment. And the Court makes this extension without any justification whatsoever other than convenience to law enforcement.

The Court's suggestion that Chadwick and Sanders have created a significant burden on effective law enforcement is unsupported, inaccurate, and, in any event, an insufficient reason for creating a new exception to the warrant requirement.

Despite repeated claims that Chadwick and Sanders have "impeded effective law enforcement," ante, at 574, 576, the Court cites no authority for its contentions. Moreover, all evidence that does exist points to the contrary conclusion. In the years since Ross was decided, the Court has heard argument in 30 Fourth Amendment cases involving narcotics. ^[12] In all but one, the government was the petitioner. ^[13] All save two involved a search or seizure without a warrant or with a defective warrant. ^[14] And, in all except three, the Court upheld the constitutionality of the search or seizure. ^[15]

In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. ^[16] See Annual Report of the Attorney General of the United States 21 (1989). No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive's fight against crime.

Even if the warrant requirement does inconvenience the police to some extent, that fact does not distinguish this constitutional requirement from any other procedural protection secured by the Bill of Rights. It is merely a part of the price that our society must pay in order to preserve its freedom. Thus, in a unanimous opinion that relied on both Johnson and Chadwick, Justice Stewart wrote:

"Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. Coolidge v. New Hampshire, supra, [403 U.S.,] at 481 [91 S.Ct., at 2045]. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United States v. Chadwick, 433 U.S. 1, 6-11 [97 S.Ct. 2476, 2480-2484, 53 L.Ed.2d 538]." Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978).

It is too early to know how much freedom America has lost today. The magnitude of the loss is, however, not nearly as significant as the Court's willingness to inflict it without even a colorable basis for its rejection of prior law.

I respectfully dissent.

Notes

1. "Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home. First, the Warrant Clause does not in terms distinguish between searches conducted in private homes and other searches. There is also a strong historical connection between the Warrant Clause and the initial clause of the Fourth Amendment, which draws no distinctions among 'persons, houses, papers, and effects' in safeguarding against unreasonable searches and seizures." United States v. Chadwick, 433 U.S. 1, 8, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977).
2. "The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer 'engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14 [68 S.Ct. 367, 369, 92 L.Ed. 436] (1948). Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization 'particularly describing the place to be searched and the persons or things to be seized.' Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." Id., 433 U.S., at 9, 97 S.Ct., at 2482.
3. See id., at 10-11, 97 S.Ct., at 2483. The earliest case cited by Chief Justice Burger was Justice Field's opinion in Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878).
4. "Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband. See Chambers v. Maroney, supra, 399 U.S., at 52, 90 S.Ct., at 1982. At oral argument, respondent conceded that the stopping of the taxi and the seizure of the suitcase were constitutionally unobjectionable. See Tr. of Oral Arg. 30, 44-46." Arkansas v. Sanders, 442 U.S., at 761-762, 99 S.Ct., at 2591-2592.
5. "[B]ecause each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and 'the burden is on those seeking the exemption to show the need for it.' United States v. Jeffers, 342 U.S. 48, 51 [72 S.Ct. 93, 95, 96 L.Ed. 59] (1951)." Id., 442 U.S., at 759-760, 99 S.Ct., at 2590-2591.
6. In framing the question for decision we stated: "Unlike Chadwick and Sanders, in this case police officers had probable cause to search respondent's entire vehicle." 456 U.S., at 817, 102 S.Ct., at 2168-2169.
7. Moreover, we quoted the following paragraph from Justice Powell's opinion in the intervening case of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981):
8. Although the Court today purports to acknowledge that the warrant requirement is the general rule, ante, at 569, it nonetheless inexplicably persists in referring to Chadwick and Sanders as announcing a "separate rule, unique to luggage and other closed packages, bags, and containers." Ante, at 571. Equally inexplicable is the Court's contention that, in overruling Sanders, it has not "extend[ed] the Carroll doctrine" that created the automobile exception. Ante, at 580.
9. In its discussion of the Johns case, the Court makes the puzzling statement that it "cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one." See ante, at 575. I assume that the Court does not mean to suggest that evidence found during the course of a search may provide the probable cause that justifies the search. Our cases have unequivocally rejected this bootstrap justification for a search which was not lawful when it commenced. See, e.g., United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948); Byars v. United States, 273 U.S. 28, 29-30, 47 S.Ct. 248, 248-249, 71 L.Ed. 520 (1927). Perhaps the Court fears that defendants will attempt similar post hoc reasoning and argue that, when the police have searched only a container rather than the whole car, they must have had probable cause only to search the container. If so, the Court's fear is unwarranted, for Johns itself foreclosed this argument. See 469 U.S., at 482-483, 105 S.Ct., at 884.
10. See ante, at 578-579 (referring to the undocumented prediction made by Justice BLACKMUN, joined by Justice REHNQUIST, in dissent in Chadwick ); ante, at 579 (referring to the fact that the dissenters had "bemoaned the 'inherent opaqueness' of the difference between the Carroll and Chadwick principles and noted 'the confusion to be created for all concerned' ").
11. One of the three pieces, Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, in 3 J. Choper, Y. Kamisar, & L. Tribe, The Supreme Court: Trends and Developments 1980-1981 (1982), was written prior to the decision in Ross. Moreover, rather than criticizing Chadwick and Sanders, the article expressly endorses Justice Brennan's refutation of the arguments advanced by Justice BLACKMUN in his dissent in Chadwick. See id., at 83-85. The other two articles were written shortly after Ross, and both criticize Ross rather than Chadwick or Sanders. See Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations in a Post-Ross World, 62 Neb.L.Rev. 1 (1983); Latzer, Searching Cars and Their Contents, 18 Crim.L.Bull. 381 (1982).
12. Illinois v. Rodriguez, 497 U.S. ----, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Florida v. Wells, 495 U.S. ----, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985); California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); Oliver v. United States, together with Maine v. Thornton, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983).
13. See Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
14. See Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
15. See Florida v. Wells, 495 U.S. ----, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
16. The number of defendants charged with drug law violations who were convicted in federal courts increased 134% between 1980 and 1986. The corresponding increase in convictions for nondrug offenses was 27%. Bureau of Justice Statistics Special Report, Drug Law Violators, 1980-86, p. 1 (June 1988). The percentage of drug cases dismissed by district courts declined from 22.2% in 1980 to 13.8% in 1989. See Bureau of Justice Statistics, Federal Criminal Case Processing, 1980-87, Addendum for 1988 and Preliminary 1989, p. 12 (Nov.1990).