On April 5, the Supreme Court ruled 6-to-3 that police officers who have probable cause to search a vehicle for illicit drugs may search every object in the vehicle, including the property of passengers who are not suspected of illegal activity. Possessions that are physically on the person of the passenger, such as objects in the passenger's pockets, are not subject to search (Wyoming v. Houghton, No. 98-184; Linda Greenhouse, "Police Searching Car May Include Passenger's Things", New York Times, April 6, 1999, p. A17; David G. Savage, "Police Power Expanded in Traffic Searches," Los Angeles Times, April 6, 1999, p. A3; "More Leeway for Police in Drug Searches in Cars," Sacramento Bee, April 6, 1999).

The decision overturned a ruling by the Supreme Court of Wyoming (Houghton v. State, 956 P.2d 363, 365 (Wyo. 1998)) which held that a closed package owned by a passenger could only be included in the search of a vehicle if there was a reason to suspect the passenger of a crime or the driver of attempting to conceal evidence in the passenger's belongings. This case involved the purse belonging to Sandra Houghton, one of two passengers in a car stopped for speeding. When the driver, David Young, admitted that a hypodermic syringe protruding from his pocket was used to administer drugs, probable cause was established, and the officer searched the vehicle. Despite knowing that the purse belonged to Houghton, the police searched it, finding methamphetamine and drug paraphernalia. Houghton's conviction for drug possession was overturned by the Wyoming Supreme Court, which found the search unreasonable under the Fourth Amendment.

In his majority opinion, Justice Antonin Scalia said the Wyoming court had drawn an incorrect distinction, based on ownership, between containers that could or could not be the target of a warrantless automobile search. "Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars," wrote Scalia. He said allowing searches of some containers but not others would confuse police and local judges. "A `passenger's property' rule would dramatically reduce the ability to find and seize contraband and evidence of crime," Scalia said.

This case involves an issue that has lingered since 1982, when the U.S. Supreme Court ruled that a search of a lawfully stopped vehicle could include "every part of the vehicle and its contents that may conceal the object of the search" (U.S. v. Ross, 456 U.S. 798, 823, 102, S.Ct. 2157, 72 L.Ed.2d 572 (1982)). However, that case did not involve a passenger, and courts since then have disagreed on the ruling's applications to closed containers belonging to passengers.

In 1979, the Supreme Court said police could not search patrons in a bar simply on the basis of a warrant to search the premises and the bartender (Ybarra v. Illinois, 444 U.S. 85 (1979)). "A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person," the court ruled in that case. But, Justice Scalia said the barroom precedent was inapplicable because it involved "the unique, significantly heightened protection afforded against searches of one's person."

Lisa Kemler of the National Association of Criminal Defense Lawyers deemed the decision "an abomination" against individual rights. Attorney Paul Gattone of the Southern Arizona People's Law Center and executive vice-president of the National Lawyers Guild said the decision will disproportionately impact minorities. "Police officers are more prone to stop people of color while driving on the streets. . .I don't think police need that expanded power. . .They have enough power now," said Gattone ("Search Rule Said To Hurt Minorities," Tucson Citizen, April 6, 1999).

MAJOR NEWSPAPERS CRITICIZE THIS DECISION

The decision is "part of the Supreme Court's increasingly arbitrary line-drawing concerning the privacy protections of the 4^th Amendment. . .The distinction between a passenger's privacy interest in the property he wears and the property he carries seems minimal compared with that same passenger's privacy interest in not being searched at all without probable cause that he committed a crime" (Editorial, "Unless It's in Your Pocket," Washington Post, April 7, 1999, p. A20).

"Once again, police are given new responsibilities to make instant judgements about facts and constitutionality. The court expands government authority to search people. And police agencies are tempted to manufacture the circumstances that justify a fishing expedition" (Editorial, "Police Power Court Decision Gives Too Much Latitude for Searches of Private Citizens," Santa Rosa (CA) Press Democrat, April 7, 1999).

"Unfortunately, the high court decision weakens liberty. It reinforces a foolish line the high court has espoused for several decades that citizens have `diminished' privacy rights on the highways of America, or once they are outside the physical piles they call home." The decision, "gives police a fishing license once they pull over a vehicle because of a suspicion not probable cause of drugs, weapons or driver impairment. This decision adds to the dilution of freedom and liberty the kind that this nation's founders thought their effort was about" (Editorial, " License to Search," Salt Lake Tribune, April 7, 1999).

"Though it may be expedient for police to bypass the magistrate and search people without warrant, it's wrong. It makes law officers their own judge and threatens our right as Americans to be left alone in our homes, our cars and our persons. Where will it end? Random pat-downs on street corners?" (Editorial, "The Fourth Amendment Suffers At Court's Hands," Greensboro (NC) News & Record, April 8, 1999).

Paul Gattone - Southern Arizona People's Law Center, Tel: (520) 623-7306.

Lisa Kemler - National Association of Criminal Defense Lawyers, 108 N. Alfred St., Alexandria, VA 22314, Tel: (703) 684-8000, Fax: (703) 684-9700.

Justice Antonin Scalia - Supreme Court of the United States, 1 First St., N.E., Washington, D.C. 20543, Tel: (202) 479-3000.

Attorney for Houghton - Donna Domonkos, Public Defenders Office, 2020 Carey Ave., Cheyenne, WY 82002, Tel: (307) 777-7137, Fax: (307) 777-6253.•