mzal@pegasus.UUCP (Mike Zaleski) (07/16/84)
Regarding this message:
"Illegal search and seizure?" What's being seized? Your
car is NOT an extension of your home (you = driver); hence, search (for
murderous drunken drivers) is not considered illegal either!
I sent a copy of this message, along with the following message to
a lawyer with whom I have previously exchanged mail on various BBoards
at Rutgers:
Does this person know what s/he is talking about? I thought that
the courts had ruled that indeed one's car was, to a certain extent,
an extension of one's home and hence could not be searched without
a warrant or consent of the owner. Could you please comment on
this, perhaps citing an important ruling?
[The context of this discussion is the question of whether stopping
cars at random, without any probable cause, to check for drunk drivers
constitutes illegal search. My understading is that it doesn't because
(1) the "search" is a "plain sight" search, and (2) the courts are not
about to let the Constitution stand between the police and drunken
drivers.]
Herewith, his reply which I hope the readers of net.auto will find
interesting (and may perhaps somewhat settle this issue of what is
an illegal search, etc.):
I'm at home, so no cites now. If you really want, I'll pull the cases
at the office.
Roughly, there are three flavors of searches:
1. What you call 'plain sight' searches. When the cop sees something
in the course of an ordinary interaction with the defendant which
is the fruit or instrumentality of crime, no restriction is placed
on his use of that information. If he stops a driver for a
taillight violation who acts drunk, he can arrest for drunk driving.
2. Searches incident to a lawful arrest. If he decides to give a
driver a ticket or actually take him into custody, he may search
the car for weapons and make use of whatever he finds. The
arrest must not be just a pretext.
3. Good faith searches under a facially valid warrant. If he
can find a magistrate who agrees that there is probable cause,
the cop can search cars or homes or anything.. Since last week,
technical defects in the warrant no longer bar introduction of evidence
seized.
Cops have long had the right to stop drivers to look for violations,
provided that the stops are general (i.e. not at random), and to
conduct the searches described in categories 1) and 2), above
after such a stop.
[The implication here is that, much as we may not like it, it is
legal for the police to set up roadblocks. -- MZ]
Whether or not something is an 'extension of your home' doesn't
have much to do with it. The operative concept is 'expectation
of privacy,' and one can have that in many places outside the home,
as well as lacking it within the home, under some circumstances.
[This seems to refute the simplistic claim "your car is NOT an extension
of you home" in the original article. -- MZ]
It is true that, in the current political climate, IVth Amendment
claims in general and such claims by drunken drivers in particular
will probably be treated less expansively than in past.
[Herein lies the debate - some of net.auto's readers are willing to
accept this. Others, myself included, are more inclined to favor
the lasting principles of The Constitution to passing political whims
and fancies of political wheeler-dealers. -- MZ]
_B
[The preceeding opinion was forwarded with permission from Bob
Carter (Carter@Rutgers or allegra!pegasus!ru-blue!Carter if you
wish to contact him. He may not have time for a continued discussion
of this, though. -- Mike^Z Zaleski@Rutgers allegra!pegasus!mzal]