Fourth Amendment Balancing: Expectations of Privacy
The Constitution provides many freedoms and protections, but each has necessary burdens, limitations, and exceptions in order to ensure that society can properly function. The difficulty of determining how extensive these exceptions and limitations should be, and how to correctly apply them in a specific situation, such as determining when an officer can detain an individual and search his or her personal belongings, is one both police officers and courts face on a daily basis.
According to the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This essentially protects individuals from searches and seizures that are conducted outside the judicial process (without prior approval by a judge or magistrate of the court). However, as discussed above, all protections afforded by the Constitution are subject to several exceptions, including the well-known Terry stop and frisk. Indeed, a Terry stop and frisk is a perfect example of the difficulty surrounding the extent and application of an exception to a constitutionally protected right.
A Terry stop is a brief detention of a person, or persons, by a police officer. In order to perform the Terry stop, the officer must have an objectively reasonable suspicion that the search is necessary. If an officer has such reasonable suspicion, based on particular facts and totality of the circumstances, the officer is then permitted to do a minimal search of the detained person for the limited purpose of ensuring the safety of prospective victims, as well as the police officer’s own safety. Although Terry stops were originally limited to the famous “pat-down” of an individual, subsequent case law has expanded the permissible scope of searches so that they now include a protective search of the area within the immediate control of the person(s). The phrase “within the immediate control” has been construed to include the area from which the individual might gain access to and/or possession of a weapon or contraband (i.e., destructible evidence).
While this seems like a specific and well-delineated exception, the unfortunate reality is that police officers are faced with unique situations on a daily basis in which they must decide, within seconds, how to correctly apply this exception in order to ensure their own safety while also protecting an individual’s rights. For example, consider the case of State v. Johnson from the Kansas Court of Appeals (2009). In this case, a police officer, Officer Tucker, was called to an apartment to investigate a possible burglary. Three police officers arrived at the apartment and observed two women packing. The officers learned that both were helping the tenant – who was not present – leave the apartment. After confirming this with the landlord, Officer Tucker continued to speak with the tenant’s girlfriend, Vicki Johnson, the defendant, while the other officers contacted the tenant to confirm the women’s story. During the discussion, Johnson asked if she could smoke and reached for her purse to grab a cigarette. The purse was outside the defendant’s reach, and Officer Tucker told her “no,” explaining that he did not want her to reach into the purse, or anything else, for officer safety reasons. Unfortunately, Johnson went ahead and grabbed the cigarette package from the purse, at which time Officer Tucker seized the package from Johnson. Then, though some of the details are unclear, Officer Tucker eventually looked inside the package and found a glass cocaine pipe. He then searched the purse and found cocaine in a prescription bottle.
Johnson filed a motion to suppress the evidence found in Officer Tucker’s investigatory search based on officer safety, but the district court denied the motion and Johnson was found guilty of possession. Johnson appealed her case, asking the Court of Appeals to make the difficult determination of whether, “once Officer Tucker had seized the cigarette package and thereby removed the package from the defendant’s possession, [did] Officer Tucker still had sufficient safety concerns under Terry to justify his search of the cigarette package and purse?” According to the majority of the Court of Appeals, no, the search of the cigarette package was not justified. As the Court of Appeals explained, by the time of the search and seizure – the Terry stop – Johnson had been identified by the landlord and had offered a plausible explanation for her presence at the apartment, which was being verified by the other officers. Comparing the cigarette package to both a purse and car by citing decisions from other jurisdictions, as well as the United States Supreme Court’s decision in Arizona v. Gant, the Court concluded that once the cigarette package was no longer in Johnson’s possession, a protective search of the package was not justified pursuant to Terry. Thus, the Court found that Johnson’s motion to suppress should have been granted and reversed the district court’s judgment. However, Judge Stephen Hill wrote an insightful dissent in which he disagreed with the Court’s conclusions.
In his dissent, Judge Hill identified an important paradoxical and dangerous issue by asking, “[d]oes this mean that an officer can lawfully seize a container for his or her protection but then not examine its contents to discover if there is indeed danger? If that indeed is the rule, I pray the container has no exploding device.” Judge Hill also found the comparison of a cigarette pack to a purse and car to be both disproportionate and unreasonable with regard to the circumstances and expectations of privacy surrounding the searches. As Judge Hill explained, “[a] glance inside an open cigarette pack is not the same intrusion as an officer pawing through the contents of a purse nor is it the same as a methodical search of a car for weapons or contraband.”
The State appealed the Court of Appeal’s decision to the Kansas Supreme Court; however, the Supreme Court concluded that the Court of Appeals was correct in determining that the defendant’s motion to suppress should have been granted. Significantly though, the State wrote a supplemental brief in which it raised Judge Hill’s argument that the defendant had no reasonable expectation of privacy in the cigarette package. Unfortunately, because this was the first time the State had raised this argument, the Kansas Supreme Court did not address the merits of Judge Hill’s argument that Johnson lacked a reasonable expectation of privacy in the cigarette package. Thus, Judge Hill’s concerns are arguably still valid, and may still need to be addressed by the Court at some point.
The legal system has a difficult task when balancing the freedom and protections afforded by the Fourth Amendment against the safety of law enforcement officers and the need to preserve destructible evidence. In the blink of an eye, a police officer must calculate the risks associated with an individual’s action and weigh it against the need to respect that individual’s freedom. Though seemingly innocuous, the struggles surrounding this balancing act continue to develop as the courts are faced with unique and complex situations.