Warrantless searches: the high court's bad switch

A true measure of how well any society cherishes its freedom is how carefully it polices its police. Recently the United States Supreme Court (in the Ross case) markedly diminished the American society's protection from overzealous police. The court reversed a decision of the court of appeals for the District of Columbia and reinstated a conviction based upon the warrantless search of packages found in the trunk of a suspected drug peddler's car which had been lawfully stopped and searched without a warrant.

In allowing that search, the court, by a vote of six to three, reversed a decision that it handed down only 11 months earlier. The change in heart can be accounted for by the replacement of Justice Potter Stewart by Justice Sandra Day O'Connor and switches in position by Chief Justice Warren Burger and Justice Lewis Powell.

The significance of the decison is not that containers may be searched if found in an automobile which police have probable cause to believe contains contraband, for a magistrate undoubtedly would have granted a warrant authorizing such a search. Instead, the significance of the decision is the cavalier way the majority dispensed with the warrant requirement.

The Fourth Amendment protects the privacy of American citizens from unreasonable intrusions by police and other government officials. Reasonableness has traditionally been determined by whether the police in conducting a search had probable cause to believe that evidence of a crime would be found in the place searched and whether they conformed to the warrant requirement. The existence of probable cause alone is not enough to satisfy the requirement of the Fourth Amendment. The Supreme Court has time and again said that warrantless searches are per se unreasonable under the Fourth Amendment, ''subject only to a few specifically established and well-delineated exceptions.'' Even the majority in the Ross case paid lip service to that doctrine.

The value of a warrant is that it interposes a judicial officer between a citizen and overzealous police. Its purpose is not to prevent a search but to assure that a neutral and detached judgment is made that facts exist which justify invading a citizen's privacy. If the facts accumulated and known to the police officer amount to probable cause to believe that evidence will be found in the place or object to be searched, the magistrate authorizes the search. When the officer cannot produce sufficient facts to establish probable cause, the intent of the framers of the Fourth Amendment was that the magistrate would deny the application for a warrant.

Exceptions to the warrant requirement were built upon necessity; they allow a police officer to conduct a search on the spot when recourse to the warrant procedure would result in the loss of evidence or where delay might endanger the safety of the police officer. Consequently when an arrest is made, the police officer may conduct a warrantless search of the person and the area within the arrested person's reach to deprive that individual of weapons or access to evidence which he might destroy. The problem is that the Burger court has so bloated these exceptions that they are no longer exceptions but, instead, have replaced the rule.

The automobile exception which the decision in Ross extends is a good example. Devised more than a half century ago by Chief Justice William Taft, the exception originally permitted a warrantless search of an automobile when there was no other option for police but to let the car be driven away while police sought judicial authorization to conduct the search. Thus the exception to the warrant requirement was born because of the mobility of the vehicle. It was eventually extended to immobilized vehicles on the theory that an individual by going out in public in an automobile has a diminished privacy interest justifying a warrantless search of the entire vehicle.

The justices have yet to explain convincingly why riding in a vehicle diminishes an individual's legitimate expectation of privacy in a locked trunk. Ultimately, the court even suggested that the automobile exception was justified because requiring police to seize a vehicle prior to a search would impose upon police departments the burden of having to tow and secure vehicles while a warrant was obtained. But the rule had already been extended to cases where seizure of the vehicle prior to search had proven to be not only practical but desirable and where police had leisurely searched a vehicle after towing it to the police station.

Until Ross, the court steadfastly drew the line at the automobile itself and refused to extend the exception to packages found in the car. In those instances , police having probable cause to believe a package or container housed evidence of a crime were permitted to seize and safeguard a package while they applied for a warrant. In Ross, however, Justice John Paul Stevens wrote for the majority that the automobile exception is broad enough to extend not only to the entire vehicle but also to any of its contents that may conceal the object of the search. The court has ignored the warning issued by Justice Stewart over a decade ago that it must not render the word automobile ''a talisman in whose presence the Fourth Amendment fades away and disappears."