In 1983, the Court eroded the Container Doctrine even further when it held that a search of a container after a prior lawful opening and controlled delivery does not require a warrant.347
when a carrier, usually an airline, unexpectedly discovers what seems to be contraband while inspecting luggage to learn the identity of its owner, or when the contraband falls out of a broken or damaged piece of luggage, or when the carrier exercises its inspection privilege because some suspicious circumstance has caused it concern that it may unwittingly be transporting contraband.
A controlled delivery typically occurs
348
After such a discovery, law enforcement agents frequently “restore the contraband to its container, then close or reseal the container, and authorize the carrier to deliver it to its owner.”
349
When the owner takes delivery, he is arrested.350 In Illinois v. Andreas, the Court held that there is no legitimate expectation of privacy in the contents of a sealed container previously opened under lawful authority and that a warrant is not required to re-open the container absent a substantial likelihood that the contents have been changed.351
V. FROM WARRANT PREFERENCE TO REASONABLENESS WITH TEETH The gradual erosion of the Container Doctrine and the Court’s corresponding shift from warrants to reasonableness is problematic for many reasons. The shift reflects the Court’s preference for ex post reasonableness review over ex ante judicial review through the warrant process. Ex post reasonableness review is not necessarily bad, but is highly deferential as currently applied, operating as a rubber stamp of approval in favor of the challenged governmental action.352
346United States v. Black, 860 F.2d 1080 (6th Cir. 1988) (holding that a warrantless
search of unconscious individual’s purse for identification or medication was reasonable given the emergency situation at hand); United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973) (holding that a warrantless search of locked briefcase for identification of individual found unconscious and foaming at the mouth was permissible to deal with the emergency).
Additionally, because the
347
Illinois v. Andreas, 463 U.S. 765, 773 (1983).
348 Id. at 770. 349 Id. 350 Id. 351 Id. at 773. 352
See Colb, supra note 38, at 1687–88 (noting that in cases where the Court applies reasonableness balancing, it applies a “relaxed and deferential approach to the balancing at
Court has failed to define reasonableness in the Fourth Amendment context, reasonableness remains a vague and amorphous standard that provides little guidance to police officers, attorneys, and lower courts.
Less obviously, the erosion of the Container Doctrine disproportionately harms poor people, and by implication poor people of color.353 As William Stuntz has observed, by protecting privacy expectations, the Fourth Amendment protects those with more privacy to begin with, which generally means wealthier individuals who can afford to live in nice homes.354 For various reasons, the poor are more likely than the wealthy to be found outside the home and on the street where they and their portable containers are more susceptible to being searched without a warrant.355
Allowing police officers to search containers without a warrant also undermines the concerns that originally motivated the Court to establish the Container Doctrine: protecting the heightened expectations of privacy that attend to the contents of portable containers and ensuring that the probable cause determination is made by a neutral and detached judicial officer, rather than a police officer. Given the numerous exceptions to the warrant requirement that enable police officers to search containers without a warrant, portable containers no longer enjoy their previous privileged status at the top of the spectrum of Fourth Amendment protection.356
In requiring police officers to obtain a warrant prior to searching a container, the Court situated itself squarely on the side of warrants when it established the Container Doctrine. While the Container Doctrine’s warrant requirement seems at odds with the reasonableness view of the Fourth Amendment, it may be possible to accommodate both the concerns that
hand”); Maclin, supra note 16, at 199 (arguing that Fourth Amendment questions tend to be resolved using a test that approximates the deferential rational basis test).
353
See infra text accompanying notes 335–356.
354
William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 GEO.WASH.L. REV. 1265, 1266–67 (1999).
355
See supra Part IV.A.2. for a discussion of how the erosion of the Container Doctrine disproportionately hurts the poor.
356
While some of these exceptions, such as the search incident to arrest and consent doctrines, also apply in the home, many of the exceptions that enable police to search containers without a warrant do not apply to containers in homes. For example, the automobile exception and the Terry stop and frisk doctrine do not apply to searches in the home. Terry searches and auto searches typically occur on the street. See Terry v. Ohio, 392 U.S. 1, 4 (1968) (“This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.”); California v. Carney, 471 U.S. 386, 403 (1985) (“The automobile exception has been developed to ameliorate the practical problems associated with the search of vehicles that have been stopped on the streets or public highways because there was probable cause to believe they were transporting contraband.”).
originally animated the Container Doctrine and the Court’s current preference for an open-ended reasonableness standard over a more precise warrant requirement. I suggest below that the Court may be able to accommodate these two seemingly divergent interests by embracing a more rigorous type of reasonableness review, which I call reasonableness with teeth. To support my proposal, I look outside the criminal procedure arena and borrow from a small slice of the Court’s equal protection jurisprudence. Drawing lessons from several equal protection cases in which the Supreme Court utilized a less deferential than usual rational basis review—what some have called “rational basis with bite”—to strike down legislation which discriminated against a politically unpopular group, I propose that courts similarly engage in more rigorous review—reasonableness with teeth
—when deciding the constitutionality of warrantless container searches. Before explaining the concept of reasonableness with teeth, I explain why the erosion of the Container Doctrine should be of concern to anyone interested in maintaining a robust Fourth Amendment.
A. WHY THE EROSION OF THE CONTAINER DOCTRINE IS