Journal of Criminal Law and CriminologyVolume 68Issue 2 June Article 6

Summer 1977

Well-Delineated Exceptions, Claims of Sham, andFourfold Probable CauseJames B. Haddad

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Recommended CitationJames B. Haddad, Well-Delineated Exceptions, Claims of Sham, and Fourfold Probable Cause, 68 J. Crim. L. & Criminology 198(1977)

THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGYCopyright © 1977 by Northwestern University School of Law

WELL-DELINEATED EXCEPTIONS, CLAIMS OF SHAM,AND FOURFOLD PROBABLE CAUSE

JAMES B. HADDAD*

INTRODUCTION

For nearly four decades specialized legal ed-ucation for prosecutors, criminal defense attor-neys and police officers has been central toFred Inbau's efforts to improve criminal jus-tice.' My role as an instructor in Inbau's train-ing courses and, at his urging, in other pro-grams and seminars, has taught me that per-plexing problems of theory can quickly surfaceduring attempts to organize and present thelaw in a manner which will serve the everydayneeds of law enforcement officers and lawyers.2

The unifying element in this essay's treatment

* Professor of Law, Northwestern University.1 Inbau, for instance, founded and continues to

direct the Northwestern University Law School ShortCourse for Prosecuting Attorneys, now in its thirty-second year, and the Northwestern University ShortCourse for Criminal Defense Attorneys, now in itstwentieth year. Each summer approximately eighthundred attorneys attend these programs. ProfessorInbau's emphasis upon training is consonant withwhat I view as a major theme of his life's work: adedication to the improvement of the reliability ofthe fact-finding process in criminal litigation. Almosteverything he has done in his career has manifestedthis same dedication: his work on scientific crimeanalysis, first at what is now the Chicago PoliceCrime Laboratory and later through publicationssuch as A. MOENSSENS, R. MOSES & F. INBAU,

SCIENTIFIC EVIDENCE IN CRIMINAL CASES (1973); hisconcern for eliminating fallible eye-witness identifi-cations, see Inbau, Book Review, 57 J. CRIM. L.C. &P.S. 376 (1966); his emphasis upon interrogationmethods which would prompt only the guilty to con-fess, see F. INBAU & J. REID, CRIMINAL INTERROGA-TION AND CONFESSIONS 218-19 (2d ed. 1967); and hisefforts to improve polygraph techniques. See J. REID& F. INBAU, TRUTH AND DECEPTION (2d ed. 1977).

2 Inbau often has observed that interaction withattorneys is beneficial to law students and law teach-ers. He no doubt agrees with the observation thatthe law school of every great university should haveseveral truly educated faculty members so as to justifyits place in a university, see Kalven,ForM.P.S., 33 U.CHI. L. REV. 193, 194 (1966); but he also believes thatevery law school, including "national" law schools,should have on its faculty several persons who, byvirtue of experience, can call themselves lawyers. Onoccasion he has been frankly disappointed by thedevaluation of experience in the faculty-hiring proc-ess.

of three fourth amendment topics is merelythat the ideas presented were generated by myparticipation in Professor Inbau's programs.3

Lecturers foolish enough to tackle the entiresubject of warrantless searches and seizures-the author included-often follow a commonpattern. They begin with a sentiment borrowedfrom Supreme Court opinions: fourth amend-ment warrantless intrusions are per se unrea-sonable subject only to a few specially estab-lished, well-delineated exceptions.' They thenlist and discuss the various exceptions. My useof this approach, as discussed in Part I of thisarticle, has convinced me that the well-deline-ated exception proposition not only fails toreflect present judicial practice but embodiesbad theory as well.

Part II resulted from reflections upon mytypical conclusion to a lecture to law enforce-ment officers: a vague, too pious admonitionagainst police "misuse" of the exceptions to thewarrant requirement. My uneasiness with pul-pit-like denunciation of police sham led me toreevaluate various claims of sham in fourthamendment litigation and to assess differentkinds of judicial responses to such claims.

Part III offers for consideration the "four-fold probable cause" concept, an organizationaltool which I have found helpful in my presen-tations. After explaining the concept, the arti-cle argues that this analysis will aid our under-standing of the legal requirements for searchwarrants and for searches under many of theexceptions to the warrant requirement. It willalso reveal several fourth amendment issues

3 Some of these ideas, although not developed,have been reflected in unpublished written materialsdistributed in connection with my lectures at theNorthwestern Short Courses. Others are scatteredthrough a handbook prepared in connection with aseminar for Illinois lawyers: J. HADDAD, ARREST,SEARCH AND SEIZURE (Ill. Inst. for Continuing LegalEducation 1976).

4 Vale v. Louisiana, 399 U.S. 30, 34 (1970): Chimelv. California, 395 U.S. 752, 763 (1969); Katz v. UnitedStates, 389 U.S. 347, 357 (1967).

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EXCEPTIONS, SHAM AND PROBABLE CAUSE

which heretofore have been largely unex-plored.

I. THE WELL-DELINEATED EXCEPTIONS

PRINCIPLE

A period of fourth amendment doctrinaldevelopment which increasingly emphasizedthe preference for search warrants culminatedin 1967 when the Supreme Court proclaimedin Katz v. United States5 that "searches conductedoutside the judicial process, without prior judi-cial approval by judge or magistrate, are per seunreasonable under the Fourth Amendment-subject only to a few specially established andwell delineated exceptions. '6 Since then a thou-sand state and federal reviewing court opinionshave parroted the declaration. 7 Perhaps fromany perspective, but certainly from the vantagepoint of a surveyor of the entire field of war-rantless searches, the "well-delineated excep-tions" principle appears at variance with reality.Exceptions to the warrant requirement aremany, not few. Some of the most important,far from being specially established, havegrown like weeds with barely any SupremeCourt attention. Some recognized exceptionsare not well delineated even in their broadoutlines, much less in their fine details. Ofgreater significance to fourth amendment the-ory, the Court has departed from its statedprinciple by refusing to invalidate a searchmerely because it did not fit within one of therecognized exceptions. The Court's deviationfrom Katz ought not be lamented, however.The variance is more consonant with soundfourth amendment theory than is the well-de-lineated exception principle. What may be5 389 U.S. 347 (1967).6Id. at 357. The present article does not enter the

debate over the extent to which the emphasis uponthe need to utilize search warrants marks a funda-mental departure from the concerns of the draftersof the fourth amendment. Compare T. TAYLOR, TwoSTUDIES IN CONSTITUTIONAL INTERPRETATION 21-43(1969), with Amsterdam, Perspectives on the FourthAmendment, 58 MINN. L. REV. 349, 398-400, 410-12(1974) [hereinafter cited as Amsterdam). True tohistory or not, long before Katz the emphasis uponthe search warrant requirement had become great.See, e.g., Jones v. United States, 357 U.S. 493, 499(1958), where the Court claimed, "The exceptions tothe rule that a search must rest upon a search warranthave been jealously and carefully drawn .... "7 The figure of 1000 is a very rough estimate de-

rived with the help of a fellow who was demonstratingcomputerized legal research.

more difficult to defend on theoretical groundsis the Court's inversion of the rule, in accord-ance with which the Supreme Court has upheldas per se reasonable all searches falling withinone of the recognized exceptions, without re-gard to all the circumstances of an individualcase.

The Myth of the Well-Delineated Exception

Only through a disingenuous use of multiplesub-categories can distinct varieties of validwarrantless searches be reduced to few in num-ber.' There are searches incident to arrest9

and frisks following Terry stops.10 There arejailhouse shakedowns" and inventory inspec-tions. 2 There are warrantless searches author-ized by consent 3 and warrantless searches au-thorized by grand juries.14 At internationalborders there are "ordinary" searches and stripsearches and body-cavity searches, each gov-erned by different rules. 15 There are fixed-checkpoint searches 6 and roving-patrolsearches. 7 There are emergency searches toprotect health and life,"8 emergency searchesto prevent the destruction of evidence, 9 and

8 The listing which follows excludes warrantlessseizures where no prior search took place (e.g.,certain plain view seizures, arrests, and stops), al-though the well-delineated exceptions principlesometimes is said to apply to seizures as well as tosearches. See, e.g., Coolidge v. New Hampshire, 403U.S. 443,454-55,464,473 (1971).

9 United States v. Robinson, 414 U.S. 218 (1973);Chimel v. California, 395 U.S. 752 (1969).

10 Adams v. Williams, 407 U.S. 143 (1972); Terryv. Ohio, 392 U.S. 1 (1968).

11 United States v. Hitchcock, 467 F.2d 1107 (9thCir. 1972), cert. denied, 410 U.S. 916 (1973).

12 South Dakota v. Opperman, 428 U.S. 364 (1976).13 United States v. Matlock, 415 U.S. 164 (1974);

Frazier v. Cupp, 394 U.S. 731 (1969).14 United States v. Dionisio, 410 U.S. 1 (1973);

United States v. Mara, 410 U.S. 9 (1973)."1 Almeida-Sanchez v. United States, 413 U.S. 266,

272 (1973) (dictum); United States v. Mastberg, 503F.2d 465 (9th Cir. 1974); Klein v. United States, 472F.2d 847 (9th Cir. 1973); United States v. Shields,453 F.2d 1235 (9th Cir.), cert. denied, 406 U.S. 910(1972).

16 Almeida-Sanchez v. United States, 413 U.S. 266(1973).

1 United States v. Ortiz, 422 U.S. 891 (1975).18 Wayne v. United States, 318 F.2d 205 (D.C.

Cir.), cert. denied, 375 U.S. 860 (1963); People v.Smith, 47 Ill. 2d 161, 265 N.E.2d 139 (1970). See alsoCady v. Dombrowski, 413 U.S. 433 (1973).

19 Schmerber v. California, 384 U.S. 757 (1966);People v. Clark, 547 P.2d 267 (Colo. App. 1975).

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emergency searches in quest of fleeing felons .20

There are warrantless searches of open fields2 1

and of vehicles stopped on open highways,2 2 of

probationers' and of parolees ,24 at courthousedoors25 and at airport gates. 26 Courts havesanctioned warrantless searches and inspectionsunder dozens of different regulatory schemes.27

Additionally, whatever was true in the days ofPitt the Elder,2s the poorest man in his ruinedtenement may be required to permit govern-ment agents to enter for a caseworker inspec-tion or under any one of a half-dozen otherjudicially-approved theories .2 9

20 Warden v. Hayden, 387 U.S. 294 (1967).21 See, e.g., United States ex rel. Saiken v. Bensin-

ger, 489 F.2d 865 (7th Cir. 1973), cert. denied, 417U.S, 910 (1974); Conrad v. State, 63 Wis 2d 616, 218N.W.2d 252 (1974), which both involved extensivesearches of fields. See also Air Pollution VarianceBoard v. Western Alfalfa Corp., 416 U.S. 861 (1974);Hester v. United States, 265 U.S. 57 (1924).

22 Chambers v. Maroney, 399 U.S. 42 (1970); Car-roll v. United States, 267 U.S. 132 (1925).

' People v. Chinnici, 51 Misc. 2d 570,273 N.Y.S.2d538 (1966).

24 United States ex rel. Santos v. New York StateBoard of Parole, 441 F.2d 1216 (2d Cir. 1971), cert.denied, 404 U.S. 1025 (1972).

25 Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972).26 United States v. Albarado, 495 F.2d 799 (2d Cir.

1974); United States v. Epperson, 454 F.2d 769 (4thCir.), cert. denied, 406 U.S. 947 (1972).

27 See, e.g., United States v. Biswell, 406 U.S. 311(1972); Colonnade Catering Corp. v. United States,397 U.S. 72 (1970); People v. Palkes, 52 Ill. 2d 472,288 N.E.2d 469 (1972), appeal dismissed, 411 U.S. 923(1973).

28 Even a prosecutor lecturing other prosecutors,so as to set a lofty tone, sometimes begins with thefamiliar quotation from William Pitt (Earl ofChatham), the history of which is treated in E.FISHER, SEARCH AND SEIZURE 3 n.7 (1970):

Every man's house is called his castle. Why?Because it is surrounded by a moat, or defendedby a wall? No. It may be a straw-built hut, thewind may whistle around it, the rain may enterit, but the King cannot .... The poorest manmay, in his cottage, bid defiance to all the forcesof the Crown. It may be frail; its roof mayshake; the wind may blow through it; the stormmay enter; the rain may enter; but the King ofEngland may not enter; all his forces dare notcross the threshold of the ruined tenement.

The lecturer's tone seem somewhat less noble at theplace where he explains to his fellow prosecutorshow a judge might be convinced to accept a life-health emergency theory if the officer entered thehome amidst a storm like that described by Pitt.Some lectures would best be entitled, "Eight Waysthe King Can Enter."

29 Wyman v. James, 400 U.S. 309 (1971). Besidesthe welfare-home visit theory, some of the other

Although there are many recognized excep-tions to the warrant requirement, some of thosemost likely to affect our daily lives have notbeen "specially established" either at commonlaw or by the United States Supreme Court.Citizens returning to this country may besearched at international borders or their func-tional equivalents under doctrines which theSupreme Court has never considered 20 Norhas the Court ever considered the several kindsof warrantless searches at airports, 31 by now afamiliar part of American life. In a single daya lawyer may have his person or effects sub-jected to a warrantless search at the entranceto a federal office building, the entrance to acounty jail, and the entrance to a local court-all under exceptions to the warrant require-ment which have never been specially estab-lished by the United States Supreme Court.Over the years doctrines have evolved in lowercourts sanctioning the warrantless searches oflockers which contain the possessions of schoolchildren3 and of soldiers 33 of postal employ-ees34 and of jail guards.3 5 Some lower courtshave recently recognized a doctrine whichprobably is unfamiliar to most readers, the

theories justifying a warrantless entry into a homeinclude entry-to-arrest [under emergency or perhapsnon-emergency circumstances, compare People v.Johnson, 45 Ill. 2d 283, 259 N.E.2d 57, cert. denied,407 U.S. 914 (1970), with Dorman v. United States,435 F.2d 385 (D.C. Cir. 1970)]; entry to prevent thedestruction of evidence, see note 37 infra; and entryto protect life or health, see People v. Brooks, 7 Ill.App. 3d 767, 289 N.E.2d 207 (1972).

30 The Supreme Court in Carroll v. United States,267 U.S. 132, 154 (1925), and in Almeida-Sanchez v.United States, 413 U.S. 266, 272 (1973), has madeapproving references to border searches. Never,however, has it considered what limits must be placedupon such searches. Special rules for strip-searchesand body-cavity searches have been developed bylower courts with no Supreme Court guidance. Seecases cited in note 15 supra.

31 Airport searches are justified under a numberof distinct theories. See Note, The Constitutionality ofAirport Searches, 72 MICH. L. REV. 128 (1973). Thus,Supreme Court implied-consent decisions treatingother regulatory schemes cannot be said to "establish"the scope and limitations of airport searches.

32 1n re Christopher W., 29 Cal. App. 3d 777, 105

Cal. Rptr. 775 (1973).' See United States v. Roberts, 25 U.S.C.M.A. 39

(1976).34 United States v. Bunkers, 521 F.2d 1217 (9th

Cir.), cert. denied, 423 U.S. 989 (1975).3- People v. Tidwell, 133 Ill. App. 2d 1, 266 N.E.2d

787 (1971).

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"homicide scene exception" to the warrant re-quirement, even though neither that term northe concept appears in any Supreme Courtfourth amendment opinion .36

The Court has left unsettled even in majorrespects the scope and limitations of certainrecognized exceptions. Under what circum-stances can the police, without a warrant, entera home to search for a suspected criminal?What circumstances would justify a warrantlessentry to prevent the destruction of evidence?Although the Supreme Court has indicatedthat both types of warrantless intrusions aresometimes permissible, it has given almost noguidance as to the kind and quantum of datanecessary to justify such searches.37 As to theseand other issues, lower courts have been left todebate the dimensions of particular exceptionsto the warrant requirement. As a result, asingle federal agency may vary its standardoperating procedures from federal circuit tofederal circuit.38

Some persons might argue that judicial pop-pycock about a few specially established, well-delineated exceptions does no real harm. Per-haps, indeed, the hyperbole serves as a salutaryreminder that police officers should not be

36 See, e.g., State v. Sample, 107 Ariz. 407, 489P.2d 44 (1971), vacated sub nom. Sample v. Eyman,469 F.2d 819 (9th Cir. 1972); People v. Wallace, 31Cal. App. 3d 865, 107 Cal. Rptr. 659 (1973); State v.Chapman, 250 A.2d 203 (Me. 1969); contra People v.Williams, 557 P.2d 399 (Colo. 1976). See generally Had-dad, Arrest, Search and Seizure: Six Unexamined Issuesin Illinois Law, 26 DEPAUL L. REv. 492, 505-10 (1977).

17 In Johnson v. United States, 333 U.S. 10, 14-15(1948), the Court suggested warrantless entries toprevent the destruction of evidence would be permis-sible under some circumstances. Johnson, however,invalidated a warrantless entry made by officers whobefore they entered had substantial reason to believethat evidence (opium) was going up in smoke.Johnsonthus has been read to support both the approval andthe disapproval of emergency entries to prevent thedestruction of evidence. See, e.g., Thomas v. Parett,524 F.2d 779 (8th Cir. 1975). Similarly the Court hasnever determined when something less than hotpursuit will justify entry to arrest. Nor has it decidedwhether a warrantless search of a building can bemade in quest of a suspect if there is less thanprobable cause to believe that the suspect is within.See generally Haddad, supra note 36, at 510-14.

38 Practices of Immigration and Naturalization Ser-vice Agents have been altered to conform with theviews of particular federal circuits. See Fragomen,Searching for Illegal Aliens: The Immigration ServiceEncounters the Fourth Amendment, 13 SAN DIEGO L.REV. 82, 112-19 (1975).

quick to substitute their opinions about proba-ble cause for the judgment of neutral judicialofficers and that trial judges should not beeager to ratify warrantless intrusions. Never-theless, as even the Supreme Court has recog-nized implicitly while inverting the per se ruleof Katz, the well-delineated exceptions princi-ple is at odds with sound fourth amendmenttheory.

The Inversion of the Per Se Rule

The United States Supreme Court has uti-lized warrantless search exceptions as guide-lines for judging the reasonableness of govern-mental intrusions, but it has not adhered tothe Katz declaration that a warrantless search isper se unreasonable if none of the recognizedexceptions can accommodate its facts. Twopost-Katz decisions, United States v. Edwards39

and Cupp v. Murphy,40 demonstrate the truthof this proposition. In Edwards the police ar-rested a burglary suspect and placed him in ajail cell overnight. Ten hours after the arrest,authorities confiscated the arrestee's clothingto have it examined for paint traces whichmight link Edwards to the alleged crime. Theonly "well-recognized exception" arguably rel-evant to the situation was the doctrine of searchincident to arrest.41 That doctrine, however,did not fit the facts of the case because thesearch had not been substantially contempore-aneous with the arrest. A search ten hoursafter an arrest is simply not "incident"thereto.41 A majority of the Court, neverthe-less, upheld the search, asserting that the issuewas simply whether the "search itself was rea-sonable. '43 Through a step-by-step analysis ofthe facts surrounding the search, the Courtconcluded that what had been done was nomore an unreasonable intrusion than wouldhave been permitted if the search had occurredincident to the arrest before Edwards wasplaced in the cell. In dissent, Mr. Justice Stew-art, the author of the Katz decision, protestedthat the Court had violated the "well-delineatedexceptions" principle by adjudging the intru-

39 415 U.S. 800 (1974).40 412 U.S. 291 (1973),4' The government conceded that other theories

were inapplicable. See 415 U.S. at 810 n.2 (Stewart,J., dissenting).

42 See Preston v. United States, 376 U.S. 364, 367(1964).43 415 U.S. at 807.

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sion reasonable in the absence of an applicableexception .4 Of course Stewart was correct. TheCourt had violated the Katz principle for thevery reason which Stewart recognized: the ma-jority had concluded that, under all pf thecircumstances of the case, the search had notbeen unreasonable and, therefore, had notviolated the fourth amendment.

Stewart himself had departed from the Katzprinciple a year earlier in writing for the major-ity in Cupp v. Murphy.45 In that case Murphyhad voluntarily appeared at the police stationfor questioning concerning the strangulationof his wife. Over his objection and without asearch warrant, the police took scrapings frombeneath Murphy's fingernails. They then al-lowed him to return home, not arresting himuntil one month later. The majority agreedthat the taking of the scrapings had been asearch within the meaning of the fourthamendment. It then upheld the intrusion asakin to a search incident to arrest.46 The factsof the case, of course, did not fall within thatexception. Where there is no arrest, there canbe no search incident to arrest.47 The Court,however, without suggesting that any otherrecognized exception fit the facts, engaged in ageneral calculation of reasonableness whichtook into account both the limited nature ofthe intrusion and the need for swift actionbefore the evidence was destroyed .4 The Courtconcluded simply that the officers had notengaged in an unreasonable search within themeaning of the fourth amendment. 49

Edwards and Murphy, and lower court deci-sions like them,"0 are important to both practice

11 Id. at 809 (Stewart, J., dissenting).45 412 U.S. 291 (1973).46 Id. at 295-96.47 Lustig v. United States, 338 U.S. 74, 79-80 (1949).48 412 U.S. at 296. Assuming that "evidence emer-

gency" by now constitutes a well-recognized excep-tion, it is not clear that this category fits. Althoughthere was probable cause to arrest Murphy, it is notclear that there was probable cause to believe that anemergency search would yield evidence. Thus Mur-phy was unlike Schmerber v. California, 384 U.S. 757(1966), an emergency search case where exigent cir-cumstances plus search probable cause (or, perhaps,a higher quantum of data) were held to justify awarrantless intrusion against a suspect's person. Seetext accompanying notes 189-91 infra.

49 412 U.S. at 296."0'See, e.g., People v. Boykin, 39 I11. 2d 617, 237

N.E.2d 460 (1968); People v. De Vito, 77 Misc. 2d463, 353 N.Y.S.2d 990 (1974).

and theory. They demonstrate that the defensehas not necessarily triumphed if the prosecu-tion, despite hauling-and-pulling, has failed tofit the facts of a particular search within one ofthe recognized exceptions. These decisionsshow that the familiar trial tug-of-war to placethe facts inside or outside an exception may beunessential to a judicial determination of rea-sonableness." Edwards and Murphy show thatMr. Justice Schaefer of the Supreme Court ofIllinois was correct when, not long after Katz,he insisted that categories such as search inci-dent to arrest and stop-and-frisk, while "help-ful in establishing broad guidelines," do not bythemselves place absolute limits upon the au-thority of law enforcement officers.52 Finally,these cases demonstrate that adherence to thewell-delineated exceptions principle, through arefusal to scrutinize all the facts of a particularsearch, would lead to intolerable results insome cases: the invalidation of reasonablesearches. In Edwards and Murphy a majority ofthe Court, quite properly, was unwilling toinvoke the exclusionary rule where, viewing allthe facts, it concluded that the police officershad acted reasonably. Neither the need touphold judicial integrity nor the hope to deterpolice misconduct can justify the exclusion ofevidence which has been secured through rea-sonable police practices. To be true to therationale of the exclusionary rule, and to ad-here to the truism that the first clause of thefourth amendment prohibits only unreasonablesearches and seizures, the Court in Murphy andEdwards was required, at least implicitly, todepart from the bad theory embodied in thewell-delineated exceptions principle.

On the other hand, if the exceptions to thewarrant requirement are merely guidelines toreasonable conduct, and not by themselves dis-positive of fourth amendment claims, it logi-cally follows that the availability of a recognizedexception should not end all fourth amend-

51 This proposition is not as obvious as it mayseem to some. Recently in oral argument before adistinguished federal reviewing court, a prosecutormet substantial resistance when he asserted that itwas not essential for the court to characterize whathad occurred either as an "arrest" or as a mere"stop." Some of the judges insisted that they had topigeonhole the police conduct before they couldevaluate its reasonableness. Contrast People v. Boykin,39 I1. 2d 617, 237 N.E.2d 460 (1968).52 Id. at 620, 237 N.E.2d at 462.

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ment analysis. As Justice Schaefer has argued,the categories by themselves ought not circum-scribe the rights of citizens any more than theyshould limit official authority.5 3 If the search isunreasonable under all the facts, it should notbe upheld simply because the facts fit withinone of the well-recognized exceptions.

The United States Supreme Court, however,has not been true to this logic. It has neverinvalidated a warrantless search where the factsfit within one of the recognized exceptions,even where, under all the circumstances, thesearch appeared unreasonable. Two otherpost-Katz decisions, Texas v. White54 and UnitedStates v. Robinson,55 demonstrate this proposi-tion. White involved the "automobile excep-tion," which had been recognized over theyears56 and which had recently been reaf-firmed in Chambers v. Maroney. 7 The rationalefor the exception lies in the exigencies associ-ated with mobility. 8 Under this doctrine policeofficers without a warrant can search a vehiclewhich has been stopped in transit if they haveprobable cause to believe that the vehicle con-tains contraband or evidence of a crime. Thesearch can be made at the scene of the stop ordelayed until the car has been transported tothe police station or to some other convenientplace.5 9 If it had not done so earlier, in Texas v.White the United States Supreme Court madeit clear that the reasonableness of an automo-bile search does not depend upon an assess-ment of all the surrounding circumstances.Even in situations where the rationale for theautomobile exception is absent, namely exigen-cies associated with mobility, according to Whitea search under the exception is still proper.60

All other factors are irrelevant once two ele-ments are present: (1) a vehicle stopped intransit; and (2) search probable cause. AfterWhite we must assume that a warrantless searchof a vehicle is permissible upon search probablecause even if the car is stopped just outside abuilding which houses both a police stationand a court, even if the sole occupant of thevehicle is arrested, and even if a magistrate is

53 Id.'a 423 U.S. 67 (1975).

414 U.S. 218 (1973).56 Carroll v. United States, 267 U.S. 132 (1925).5 399 U.S. 42 (1973).18 Id. at 48-51.

11 Id. at 47-52.0 423 U.S. at 68.

available immediately to consider an applica-tion for a search warrant.61

The Supreme Court in United States v. Robin-son62 afforded similar treatment to the doctrineof search incident to arrest, creating anotherrule of per se reasonableness. The rationalefor the search-incident exception rests uponthe need to prevent the arrestee from securinga weapon or destroying evidence of the crime.Yet in Robinson the Court indicated that wherethe circumstances surrounding an arrest dem-onstrate no need to search the arrestee foreither purpose, a search incident to arrest isstill constitutionally proper. After Robinson wemust assume that the Court would uphold thesearch of a rabbi-a pillar of the community-following a minor traffic arrest although athorough frisk of the rabbi's person had yieldedno weapon and although the crime was not ofthe type which is evidenced by any object whichcan be concealed on the person. Only a singleelement-a valid custodial arrest-is necessaryto justify a contemporaneous warrantlesssearch of the arrestee's person. All other sur-rounding circumstances are irrelevant to thefourth amendment determination of reasona-bleness.

As Edwards, Murphy, White, and Robinson in-dicate, the Court has inverted its pledge inKatz to invalidate, per se, all warrantlesssearches falling outside the traditional excep-tions. While not adhering to the per se rule ofunreasonableness, it has created rules of per sereasonableness. No doubt it has done the latterto serve two kinds of administrative conveni-ence, police and judicial. Under Texas v. White,an officer need not weigh the exigencies 6feach situation to determine whether without awarrant he can search a vehicle stopped on thehighway. Nor need an officer, following a validarrest, make an individual calculation aboutthe possibility that a full search will yield eithera weapon or evidence of the crime. Per serules somewhat simplify the task of the lawenforcement officer. Similarly, trial and re-viewing courts need not be bogged down bythe necessity for making individual determina-tions of reasonableness .63

61 These, of course, were not the facts of the case,but under the decision's rationale, the warrantlessintrusion would have been upheld if these had beenthe facts.

414 U.S. 218 (1973).63 United States v. Watson, 423 U.S. 411 (1976),

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Of course, the well-delineated exception ap-proach described in Katz, if adhered to, wouldalso be simpler to administer than an approachwhich permits law enforcement to point to allthe circumstances of a search in defendingagainst a fourth amendment claim. Thus, itmay be difficult to defend the logic of a systemin which per se rules are conclusive only wherethey favor the prosecution. Without insistingthat such a defense is impossible, 4 the authormerely repeats his conclusion: by creating asystem in which law enforcement, but not thecitizenry, can rely upon per se rules, the Su-preme Court has departed in a most funda-mental way from its assertion that searchesoutside the judicial process are per se unrea-

also created a rule of per se reasonableness. Therethe Court held that without regard to the surround-ing circumstances (e.g., the presence or absence offacts demonstrating the need for swift action), uponprobable cause without a warrant an officer canarrest a suspected felon in a public place. I have nottreated this case in the text because it involves awarrantless seizure rather than a warrantless search.See note 8 supra. One dissenter in Watson arguedthat the majority's rationale would also lead the Courtto create a per se rule of reasonableness for warrant-less entries into homes for purpose of arrest. Id. at453-54 (Marshall, J., dissenting). Such a per se rulenow exists in Illinois. See People v. Johnson, 45 Il1.2d 283, 259 N.E.2d 57 (1970), cert. denied, 407 U.S.914 (1972).

1 If at trial the police are given an opportunity toargue that their conduct was reasonable even thoughit did not fit within any of the recognized exceptions,ordinarily this will pose no problem for citizens indeciding how they should act. If at trial the citizenhas an opportunity to argue that the officer's conductwas unreasonable even though it fit within a recog-nized exception, officers will suffer uncertainty as tohow they should conduct themselves. Thus becausepolice officers have a greater need for fourth amend-ment certainty than do citizens, because officers'conduct varies with the rule of law, it could beargued that per se rules of reasonableness are morejustified than per se rules of unreasonableness. Ide-ally, we should always consider all the circumstancesin determining reasonableness, but the need forsimplicity points to the use of per se rules of reason-ableness more strongly than it does to the use of perse rules of unreasonableness.

Whether this justification is sound or not, it iscertain that one who lectures prosecutors can urgethem to argue the narrow rule, if a search fits withinthe rule, and the broad concept of reasonableness ifthe search does not fit within the rule. Because ofthe inversion of the per se rule of Katz, a lecturercan suggest no analogous approach to defense law.yers.

sonable, subject only to a few specially estab-lished, well-delineated exceptions.

II. CLAIMS OF SHAM

Criminal defense attorneys frequently allegepotential or actual police abuse of various ex-ceptions to the search warrant requirement.They complain, for instance, of police effortsto discover criminal evidence through tiffiedarrests,65 pretext license inspections, " andsham inventory searches.6 7 Lower courts oftenhave responded by examining the officer's mo-tivation on a case-by-case basis, and by exclud-ing evidence when the officer's true purposehas been deemed bad.68 The United StatesSupreme Court on several occasions has re-acted to claims of sham by narrowing a war-rantless intrusion doctrine, so as to limit thepossibility of abuse. 69 In other instances, with-out modifying the doctrine, the Court has heldout the possibility that it, too, would use the"bad motivation" approach in individualcases. 70 On the other hand, Professor AnthonyAmsterdam and other well respected fourthamendment experts have recommended an ap-proach which I call "use-exclusion. ' 71 In the

65 United States v. Carriger, 541 F.2d 545 (6th Cir.1976); United States v. Bradley, 455 F.2d 1181 (1stCir. 1972), affd, 410 U.S. 605 (1973); People v. Rind,57 Misc. 2d 349, 292 N.Y.S.2d 769 (1968).

11 Swift v. State, 131 Ga. App. 231, 206 S.E.2d 51,rev'd. 232 Ga. 535, 207 S.E.2d 459 (1974); State v.Maynard, 114 N.H. 525, 323 A.2d 580 (1974); Peoplev. Lilly, 88 Ill. App. 3d 379, 347 N.E.2d 842 (1976).

67 People v. Martin, 48 App. Div. 2d 213, 368N.Y.S.2d 342 (1975); State v. Boster, 217 Kan. 618,539 P.2d 294 (1975).

1 See, e.g., United States v. Edmons, 432 F.2d 577(2d Cir. 1970); People v. Martin, 48 App. Div. 2d213, 368 N.Y.S.2d 342 (1975); Swift v. State, 131 Ga.App. 231, 206 S.E.2d 51, rev'd, 207 S.E.2d 459 (1974);State v. Cooley, 229 N.W.2d 755 (Ia. 1975); Brumleyv. State, 484 P.2d 554 (Okla. Crim. App. 1971); O'Neilv. State, 194 So. 2d 40 (Fla. App. 1967); People vNagel, 4 Cal. App. 3d.458, 84 Cal. Rptr. 353 (1970);People v. Rind, 57 Misc. 2d 349, 292 N.Y.S.2d 769(1968); People v. Harr, 93 Ill. App. 2d 146, 235N.E.2d 1 (1968); People v. Lilly, 38 Ill. App. 3d 379,347 N.E.2d 842 (1976).

69 See text accompanying notes 109-10 infra.70 See text accompanying notes 92-93 infra.71 Amsterdam, supra note 6, at 433-39; LaFave,

"Case by Case Adjudication" Versus "Standardized Proce-dures": The Robinson Dilemma, 1974 SUPREME COURTREV. 127, 156-57 [hereinafter referred to as LaFave].Amsterdam's advocacy of use-exclusion is much moreencompassing than LaFave's suggestion that it beused to govern searches incident to traffic arrests;

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material which follows, after defining the prob-lem, I describe and evaluate the different typesof responses to claims of sham. I conclude thatthe use-exclusion approach is the least desirablemethod of dealing with this fourth amendmentproblem.

Defining the Problem

While adhering to the letter of a judicially-approved doctrine- such as search incident toarrest, stop-and-frisk, or inventory search-apolice officer might use the authorized powerfor a purpose not intended by the court whichoriginally sanctioned use of such power. Forinstance, the United States Supreme Courtapproved the Terry frisk in order to protectofficers from the possible use of concealedweapons during lawful on-the-street question-ing;72 yet some officers, while staying withinTerry boundaries, may employ stop-and-friskprocedures where their true motivation is thehope of discovering narcotics. Similarly, courtshave sanctioned inventory searches in order tosafeguard the property of citizens and to deterfalse claims of theft;73 yet some officers mayuse an inventory search in quest of criminalevidence in cases where they have not, andperhaps, for want of probable cause, could notsecure a search warrant. After relating severalexamples, Professor Amsterdam summarizedthe concern nicely:

First. A powr is claimed by a law enforcementofficer to engage in conduct that intrudes uponthe privacy of a citizen .... Second. The allowanceof that power consistently with the fourthamendment is sought to be justified by the exis-tence of a specific law enforcement need....Third. The power may in fact be exercised forsome other purpose than the one which is as-serted to justify it. 4

Although some courts would be troubled bythe use of a judicially-approved doctrine forany improper purpose, in criminal cases de-fense counsel focus almost exclusively upon a

nevertheless, even Amsterdam's endorsement of theapproach is limited to select situations. See textaccompanying notes 88-91 infra.

72 Terry v. Ohio, 392 U.S. 1, 23-27 (1968).• South Dakota v. Opperman, 428 U.S. 364, 369

(1976); People v. Smith, 44 Ill.2d 82, 88, 254 N.E.2d492, 496 (1969); State v. Hock, 54 NJ, 526, 534-35,257 A.2d 699, 703 (1969), cert. denied, 399 U.S. 930(1970).

74 Amsterdam,supra note 6, at 434.

single type of "bad" motivation: an officer'sdesire to discover criminal evidence.7 5 In otherwords, claims of sham echo through the crimi-nal court building only where the officer ispursuing what is normally considered a legiti-mate law enforcement objective. If Officer A,following a minor traffic violation, stops theoffender in hope of spotting contraband inplain view, defense counsel will probably arguethat the officer's motivation is reason enoughto suppress any evidence discovered after thestop. If Officer B made a traffic stop becausethe offending driver was an attractive female,defense counsel probably will make no motionto suppress evidence found in plain view basedupon the officer's improper motivation. Thusour sole concern is the use of fourth amend-ment doctrines as a guise for discovering crim-inal evidence where those doctrines were notapproved for such purpose.

Keep in mind also that we are discussingpretext, not perjury. There is a differencebetween a "sham" and a "lie." In decidingwhether to approve the use of stop-and-friskprocedures or ordinary traffic stops, a courtmay consider the possibility that an officer whois willing to fabricate data to justify such stopswould be able to use judicially-approved doc-trines as a means of discovering criminal evi-dence without a search warrant. But this is adifferent problem. For now we are concernedabout cases where the officer is conforming tothe letter of the law-where there are, forinstance, judicially-approved grounds for astop-but where the officer's motivation is al-leged to be improper.

Alternative Responses to Claims of Sham

Again borrowing from Professor Amster-dam, we can classify various possible judicialresponses to claims of sham .7 A court can

15 Occasionally a civil suit is brought to challenge adifferent type of bad motivation in the use of fourthamendment powers, namely, racially discriminatorymotivation.

7c Amsterdam, supra note 6, at 436-39. As doesAmsterdam, I omit discussion of the "administrative-regulations" approach as a possible solution to theproblem under discussion. Like Amsterdam, I be-lieve that the administrative-regulations approachmust be evaluated on broader criteria than its abilityto end sham use of fourth amendment powers. Thepolice-regulations concept by now has a lengthy his-tory. See R. Fincher, Implementation of Administra-tive Rulemaking in the San Jose Police Department

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JAMES B. HADDAD

react in one of several ways after assessingpotential or actual abuses of a particular fourthamendment doctrine. (1) It can uphold use ofpower under the doctrine but exclude from acriminal trial all evidence discovered wheresuch discovery was not within the dotrine's"reason for being." (2) It can uphold the doc-trine but exclude from a criminal trial anyevidence discovered where such discovery wasnot within the doctrine's "reason for being" ifthe possibility for such discovery motivated theofficer's use of authority under the doctrine.(3) The court can uphold the doctrine andadmit all evidence discovered as long as theofficer, whatever his motivation, obeyed theletter of the law. (4) It can eliminate the doc-trine or narrow its application so as to reducethe possibility of sham.

As I indicate below, I believe that, in reactingto claims of sham, courts generally should makethe "hard choice" between the third and thefourth approaches. My greatest concern, how-ever, is that courts should not use the firstmethod, which I call "use-exclusion."

1. The Use-Exclusion Approach

Before pondering a definition, consider theuse-exclusion method as applied in inventory-search and stop-and-frisk cases. Governmentofficials could engage in inventory searches asheretofore approved. Because the rationale forthe inventory search exception to the warrantrequirement is not the possible discovery of

12-18 (1975) (unpublished thesis in NorthwesternUniversity School of Law Library). The idea shouldnow be judged according to its practicability, both asto drafting and implementation. For a list of variousprojects designed to make the concept a reality, seeid. at 19-25. Further discussion without empiricaldata would not be very helpful.

For purposes of our present discussion, the admin-istrative-law approach is somewhat like the thirdmethod discussed in this section, in that it wouldnarrow search and seizure powers but then wouldallow admission of evidence discovered through theuse of the power, without regard to police motiva-tion. To the extent that the administrative-law ap-proach eliminates discretion, it eliminates the offi-cer's ability to use a particular power because ofsome individual motivation. Of course, the elimina-tion of discretion also makes certain searches man-datory. Unless I were trying to get the citizenry torise up and demand restrictions on police powers, Iwould not favor a rule which, for instance, requiredofficers to make full searches of all traffic arrestees.The cure of mandatory searches is worse than the illof improperly motivated searches.

criminal evidence, however, the prosecutioncould not introduce at trial any evidence discov-ered in an inventory search. Nor could it useas evidence anything derived from the search.The motivation for any particular inventorysearch would be irrelevant. This approachwould satisfy the alleged need to protect prop-erty and to discourage false claims of theft. Atthe same time it would deprive the police ofany motive to use an inventory search as aguise for searching for criminal evidence. Theuse-exclusion approach would also avoid thetroublesome search for an individual policeofficer's true motivation.

Similarly, an officer would be permitted tofrisk suspects in accordance with the principlesof Terry v. Ohio.7 7 The rationale for upholdingthe power to frisk is the need to discover if thesuspect is armed. Therefore, if a frisk con-ducted within proper limits yielded some evi-dence other than a weapon, the court wouldnot admit such evidence in a criminal trial.The use-exclusion compromise would satisfythe need to protect the officer, while makingfruitless any use of stop-and-frisk proceduresas guise for discovering narcotics or other crim-inal evidence.

To state the matter abstractly, use-exclusionwould allow an officer to employ a particularsearch-and-seizure doctrine free of judicialscrutiny of his motive. His conduct would bedeemed reasonable under the fourth amend-ment as long as he kept within the letter of thelaw. Without regard to the officer's good faithor bad faith, however, the prosecution couldnot use any criminal evidence discoveredthrough the officer's exercise of authority, ex-cept where the rationale for the doctrine wasthe possibility that through the use of authorityunder the doctrine such criminal evidencemight be discovered. In all other cases, theadmission of evidence discovered through useof the power, and of anything derived fromsuch discovery, would violate the fourthamendment.75 Stated more crudely, the officercould "do it" but often the prosecutor couldnot "use it." This approach has at least oneanalogue in criminal procedure: decisionswhich permit governmental employers to ques-

77 392 U.S. 1 (1968).78 Amsterdam, supra note 6, at 437-39. One court

seemingly has endorsed the use-exclusion method.See Mayfield v. United States, 276 A.2d 123 (D.C.App. 1971).

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tion employees despite fifth amendment objec-tions, but which prohibit prosecutors from us-ing as evidence anything derived from suchinterrogation.7 9 The common characteristic ofall use-exclusion approaches is the exclusionfrom a criminal prosecution of evidence whichhas been lawfully acquired.80

The argument for fourth amendment use-exclusion can be stated simply. Such an ap-proach is necessary to raise the general level ofpolice conduct to the standard of reasonable-ness demanded by the fourth amendment.81

The exclusion of some lawfully acquired evi-dence is the necessary price for such a result.For example, even if Officer X, motivated onlyby the proper purpose of protecting a citizen'sproperty, conducted an inventory search withinthe letter of the law, we must exclude anycriminal evidence which she came upon duringthe inventory-this to ensure that Officer Yand Officer Z, and all of X's other brother andsister officers, will not abuse the inventory-search power by using it in quest of criminalevidence. In short, as Professor LaFave hassummarized, use-exclusion "would appear tobe a long overdue recognition of a 'regulatory'rather than an 'atomistic' view of the FourthAmendment."82

I believe, however, that fourth amendmentuse-exclusion is neither theoretically sound norpolitically feasible. My opposition rests on sev-eral grounds. First, the "costs" of such an ap-proach, while depending upon chance, wouldinevitably be so enormous as to be intolerable,partly because of derivative evidence conse-quences. Second, in departing from presentexclusionary philosophy by attenuating the re-lationship between misconduct and exclusion,the use-exclusion approach would breed disre-spect for the judiciary and would not survive abrief experimental life. Third, I am convincedthat use-exclusion is such a radical approachthat even a zealous advocate would employ the

7' See Gardner v. Broderick, 392 U.S. 273 (1968).80 Right or wrong, the author is consistent in his

dislike for use-exclusion in all areas of criminal pro-cedure. See F. INBAU, J. THOMPSON, J. HADDAD, J.ZAGEL & G. STARKMAN, CASES AND COMMENTS ON

CRIMINAL PPROCEDURE (1974), 1977 SUPPLEMENT 57-58.

sI LaFave, supra note 71, at 156-57; Amsterdam,supra note 6, at 437-38.

'2 LaFave, supra note 71, at 157. The wordsl"regu-latory" and "atomistic" are borrowed from Amster-dam, supra note 6, at 437-39.

method sparingly. Such an advocate would useit only to combat sham use of those fourthamendment powers which he would gladly seeeliminated altogether. He would not proposeuse-exclusion to curb sham use of fourthamendment doctrines which he believes arelegitimate on their face. Thus, like the rest ofus, he would be required to turn elsewhere fora solution to the problem of fourth amendmentsham.

In whatever area it were utilized, the costs ofuse-exclusion would depend upon chance.Consider, for example, a rule which permittedinventory searches but which excluded from acriminal trial, without regard to the officer'sgood faith, any evidence derived from an in-ventory search. Many such inspections wouldbe free of charge to society, for they wouldproduce no criminal evidence. In some cases,however, the inventory would result in thediscovery of marijuana; in others, officerswould discover the corpse of a homicide victimor other evidence of a murder. Because noth-ing found in the inventory could be used ascriminal evidence, the costs to society wouldvary with the magnitude of the discovery.

Moreover, such exclusion would not merelyleave the police where they would have been ifthey had not made the inventory search.Rather, under normal derivative evidence prin-ciples, which use-exclusion advocates may haveoverlooked,83 chance discoveries could effec-tively bar any prosecution. If, for instance, aninventory search of a vehicle provided lawenforcement with the first link between the carowner and a murder, no matter what evidenceemerged thereafter, very likely the prosecutorwould be unable to prove that his case hadorigins entirely independent of the inventorysearch. Unlike its fifth amendment analogue,fourth amendment use-exclusion does not lend

8 Practically, use-exclusion advocates could noteliminate derivative evidence consequences by ex-cluding the "original" evidence but admitting its"fruits." There really is no such thing as use-exclusionwithout fruits-exclusion. One cannot very well ex-clude a gun but permit testimony about discovery ofthe gun. To the extent that one drew an arbitraryline between use and fruits and admitted the latter,to that same extent would officers be permitted tobenefit by using a fourth amendment power for animproper purpose. Therefore, in patching up use-exclusion by modifying derivative evidence princi-ples, use-exclusion advocates would undermine theirown purpose.

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JAMES B. HADDAD

itself to the institutionalization of procedureswhich can safeguard a prosecution from taint.MThe officer who discovers evidence during aninventory search of a vehicle can hardly beexpected to keep his knowledge from detectiveswho are investigating a murder. If a" courteffectively mandated such secret-keeping (lestthe use-exclusion approach fatally taint a pros-ecution), it would create enormous public out-rage. Imagine, for instance, reaction to therequirement that an officer keep secret hisdiscovery of a small child's body in an automo-bile trunk. And even if a police officer testifiedthat he had kept from homicide detectives hisknowledge of a link between a car owner and amurder which they were investigating, a trialcourt's understandable skepticism might pre-vent the prosecution from meeting its burdenof proving lack of taint.

The use-exclusion method would thus attachan unknown but potentially enormous price tothe officer's decision to conduct an inventorysearch, or to utilize any other fourth amend-ment power not designed for the discovery ofcriminal evidence. It would present law en-forcement with difficult choices: frisk a suspectat the risk of jeopardizing a burglary prosecu-tion if the hard object turns out to be stolenjewelry rather than a weapon; curb a vehiclefor a traffic offense at the risk of barring ahomicide prosecution if the stop leads to thediscovery of murder evidence in plain viewwithin the car; inventory an automobile at therisk of immunizing its owner from criminalprosecution. The choice is between two legiti-mate objectives, protecting an officer's life orenforcing the burglary statute; enforcing thetraffic code or prosecuting for murder; safe-guarding the property of citizens or enforcingthe criminal code. The Constitution should notand, as Justice Frankfurter said, in a relatedcontext, the "Constitution does not require thathonest law enforcement should be put to anunavoidable choice .between two recourses ofthe Government."85

8 If, for instance, police officials compel answersfrom an officer who is the subject of a departmentalexcessive-force investigation, a prosecutor can de-cline to examine the police internal file, at least untilhe has completed his investigation and "sealed" hisevidence. Thus the prosecutor may have some chanceof demonstrating that his criminal case is untaintedby the officer's compelled answers in the internalinvestigation.

85 Abel v. United States, 362 U.S. 217, 229 (1960).

I also believe that the use-exclusion method's"regulatory" approach to exclusionary princi-ples is too subtle and too lacking in emotionalappeal to command widespread public orjudi-cial support. At least some substantial segmentof the judiciary and of the public, even if theycannot establish it empirically, feel a need todeprive the prosecution of evidence in case Mif such evidence has been discovered through aviolation of the defendant's rights by an officerwho was investigating crime M. But once therelationship between misconduct and exclusionis attenuated-once, so as to serve some remotepurpose, we exclude evidence in a case wherethe officers have done nothing wrong- we havedestroyed the tit-for-tat emotional base neededto support exclusionary principles.

The point can be illustrated by a story whichnever made the West reports and by discussionof a common theme of a small series of re-ported decisions. After he had killed eightwomen, but before he was arrested, RichardSpeck's fourth amendment rights were violatedin connection with an "investigation" whollyunrelated to the women's deaths. Acting onthe tip of a prostitute, relayed through severalhearsay sources, a police officer, without asearch warrant, entered a hotel room whichhad been rented by Speck under an assumedname and, in Speck's absence, confiscated agun.86 Later it appeared that this weapon prob-ably had been the gun which Speck had usedto threaten the women as he tied their handsbehind their backs. Despite an abundance ofprosecutorial precaution to safeguard fourthamendment rights in the investigation of theeight slayings, the prosecution was deprived ofan important piece of evidence.8 7 To many

6 Record, C. 568-75, People v. Speck, 41 Ill. 2d177, 242 N.E.2d 208 (1968). Having illegally seizedthe weapon, the officer, perhaps to avoid paperworkand court appearances, made no arrest and kept theweapon rather than inventorying it.

8' The prosecution acknowledged the illegality ofthe seizure and made no offer of the weapon. Re-cord, C, 730. Despite the survivor's testimony abouta gun, the State's inability to introduce Speck's gunhas apparently contributed to the myth, spread in S.BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN,

AND RAPE 361 (1975), that nine women (victims ofour culture, perhaps) bypassed an opportunity toattack a lone man who was armed only with a knife.Elsewhere in the Speck homicide investigation, prose-cutors took such precautions as allowing Speck's one-week tenancy of a certain boarding house room toexpire before searching it with the owner's consent,although Speck had clearly abandoned the premises.

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persons such a result was intolerable. Becausethe beat officer who had entered the room wasnot a part of the homicide investigative team,these persons felt that the Speck prosecutionshould not have been the vehicle for punishingthe officer's misconduct. An "atomistic" viewof the fourth amendment, perhaps, but onewhich must be reckoned with.

In what I call the "going-too-far" sequenceof opinions, the attenuation between wrongand exclusion is much greater than in Speck,but still not nearly as great as the attenuationunder the use-exclusion approach, A singleexample illustrates these decisions." Let ussuppose that the police receive a tip that D wasthe offender in a recent burglary. Unfortu-nately, the informer is an unreliable one whohas not disclosed how he got his information.Fortunately, D was arrested and fingerprintedfive years earlier, so that the police can com-pare his prints to fingerprints found at thescene. Unfortunately, the arrest five years agowas illegal. If illegally obtained fingerprints ledto D's arrest, current exclusionary principleswould make his arrest unlawful and wouldtaint evidence immediately derived from thatarrest (perhaps including another fingerprintcard, a statement, an identification, and theproceeds of the crime). Some courts, however,have refused to apply the exclusionary rule insuch a case. Right or wrong, they have beenemotionally unable to penalize the prosecutionin this case for what an officer did in an unre-lated matter years earlier. The relationshipbetween the misconduct and the exclusion ofevidence is too distant.

If the urge to limit application of the exclu-sionary rule where there is attenuation betweenmisconduct and result is widespread-and Isuspect it is-it is impossible to envision broadsupport for a rule which punishes police mis-conduct in such an indirect fashion, namelythrough the exclusion, under some circum-stances, of evidence which has been lawfullyacquired. Accordingly, I do not believe thatthe use-exclusion approach would survive itsinitial strong test. The first time a judge wascalled upon to effectively bar prosecution forsome notorious crime, in a case where anofficer in all good faith had conducted a rou-

11 See, e.g., United States v. Scios, (D.C. Cir. No.75-1619 Aug. 23, 1976); Taylor v. State, 547 P.2d 674(Nev. 1976); Commonwealth v. Fredericks, 235Pa, Super. 78, 430 A.2d 498 (1975).

tine inventory search, would also be the lasttime that use-exclusion would be applied toinventory searches.

Finally, it appears that advocates of use-ex-clusion support this response to claims of shamonly when they believe that the doctrine underwhich the initial intrusion is made should eitherbe abolished or significantly limited. Considerthe power to stop an automobile under twodistinct theories: (1) to initiate prosecution fol-lowing observation of a minor traffic violation;and (2) to make an inspection of the driver'slicense even though no offense has been ob-served. Either power could be abused; that is,either power could be used as a pretext forplacing an officer in a position to observe plain-view evidence which nay be within the car.Courts must respond to claims of sham follow-ing either type of stop. Yet we have not heardadvocacy of use-exclusion in traffic stop cases,but only in license-inspection cases. Such selec-tive advocacy appears uniform. Professor Am-sterdam endorses tuse-exclusion in license-check and stop-and-frisk cases, s° I respectfullysuggest, because he believes that the fourthamendment balance wopld be better struck ifofficers had neither the stop-and-fisk nor thelicense-check power to intrude against a citi-zen's liberty and privacy. If the threat of use-exclusion led police to abandon license-checksor stop-and-frisk procedures (or, I suspect,inventory searches) lest officers provide citizenswith an "immunity bath" in random fashion,Amsterdam would probably say, "So be it." Isuspect, however, that he does not endorseuse-exclusion following traffic stops because hebelieves such stops serve a legitimate law en-forcement purpose which outweighs thedriver's interest in liberty and privacy. Simi-larly, Professor LaFave tentatively endorsesuse-exclusion following searches incident toroutine traffic arrests only, I believe, becausehe prefers that the police not have the poweiwhich was sanctioned in United States v, Robin-son.

90

89 Amsterdam, supra note 6, at 434. Since Amster-dam has not purported to list all instances where hewould utilize use-exclusion, my conclusions are ad-mittedly speculative. I think, however, that his par-enthetical speaks volumes about when he would ad-vocate use-exclusion: "I would apply the exclusionaryrule as I have suggested to stop-and-frisk, and alsoto other search-and-seizure practices-such asdriver's license checks, if they are to be permitted at all.

" Id. at 438 (emphasis added).See generally LaFave, supra note 71.

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JAMES B. HADDAD

Utilization of use-exclusion to meet all claimsof sham would result in some major alterationsof fourth amendment doctrine which responsi-ble critics of the present system would be un-willing to accept. As the automobile stop ex-amples indicate, use-exclusion, uniformly ap-plied, would radically alter plain view doc-trines. Plain view observations and evidenceseized in plain view would always be excludedwhere an officer's right to be at his vantagepoint depended upon some prior valid intru-sion (such as entry-to-arrest or stop-to-ticket),the rationale for which intrusion is not thepossibility of discovering criminal evidence. Ifthis result did not follow, then how, for in-stance, could use-exclusion be a solution forpretext license checks or pretext traffic stops?Similarly, the use-exclusion approach, appliedunselectively, would greatly alter the doctrineof search incident to arrest. The purpose of asearch incident to arrest is to prevent the arres-tee from destroying evidence of this crime orfrom securing a weapon. The rationale of"search-incident" does not include the possiblediscovery of evidence of an unrelated crimethrough a warrantless search conducted with-out probable cause to believe that such evidencewill be discovered. Thus, under the use-exclu-sion doctrine, only a weapon or evidence ofthis crime could be admitted. The cost of asearch incident to arrest would be creation ofan "immunity shield" for unrelated evidencediscovered in such a search and for any evi-dence derived through such discovery. If thisresult did not follow, how would the use-exclu-sion doctrine discourage an officer from usinga lawful marijuana arrest as a pretext forsearching the arrestee's person in quest ofevidence of a murder? Use-exclusion is advo-cated selectively because its proponents are notwilling to accept the major modifications whichwould flow from uniform application.

From these observations two conclusions fol-low. First, any disclaimers to the contrary, thereal concern of advocates who selectively pro-pose use-exclusion is judicial recognition of aparticular fourth amendment doctrine, not thepotential or actual abuse of the doctrine. Whatis wrong with license checks, in their view, isnot that an officer might use the power as aguise to catch a criminal, but rather that, withno such purpose in mind, he can use it againstany motorist. The solution then is to eliminate

or to narrow in scope the license-check power(or the doctrine of inventory search or stop-and-frisk procedures or the power to searchtraffic arrestees). To this theme the article shallreturn shortly. 91 Second, because advocates ofuse-exclusion would. use this method only tomeet some claims of sham, and because even inthose situations it would lead to intolerableresults, we must turn to alternative methods ofresponding to claims of sham.

2. The Ulterior Purpose or Bad Motive Approach

Under a second approach to meeting claimsof sham, courts would examine an officer'spredominant motivation for utilizing authorityunder a particular fourth amendment doctrine.If the doctrine's reason for being was not thepossible discovery of criminal evidence, and ifthe court found that an officer had used thatpower primarily motivated by a desire to dis-cover evidence, it would exclude any evidencediscovered through the use of the power. Con-sider, for example, the stop of a vehicle follow-ing a minor traffic violation. If the court deter-mined that the officer's true purpose was notto initiate a traffic prosecution but, rather wasto discover "plain view" evidence, it wouldsuppress any such evidence as well as testimonyderived from observation of such evidence. InAbel v. United States" and, to a lesser extent,elsewhere,9 3 the United States Supreme Courtin dictum left open the possibility of using thisapproach, although it has never actually ex-cluded evidence because of an officer's ulteriormotive. Lower courts have used this apporachon many occasions.94

The most frequent criticism of the motivationapproach is that ajudicial search for an officer'strue motive is often difficult.9" To use thewords of Justice Fortas, spoken in a slightlydifferent context, the quest may be "as elusiveas an attempt to capture last night's moon-beam,' 9 6 at least absent the officer's judicialconfession of his true motive. There are, how-

9" See text following note 115 infra.92 362 U.S. 217, 230 (1960)." United States v. Robinson, 414 U.S. 218, 221 n.1

(1973); South Dakota v. Opperman, 428 U.S. 364(1976).

' See decisions cited in note 68 supra." See Amsterdam, supra note 6, at 436-37.96 Massachusetts v. Painten, 389 U.S. 560, 562

(1968) (Fortas, J., concurring). See also id. at 564-65(White, J., dissenting).

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ever, in some cases objective factors whichdemonstrate that the officer's true motive wasthe discovery of criminal evidence. 97 The hom-icide detective who in the midst of an investi-gation arrests a suspect on a valid disorderlyconduct charge, searches the suspect, and theninterrogates him about the homicide has prob-ably revealed his true motive. 98 So also has theofficer who, responding to a robbery in prog-ress, stops a vehicle which has run a red lightnear the scene of the reported robbery. Thusin some clear cases, where we are sure that anofficer used a fourth amendment power as apretext to discover criminal evidence, we coulduse the ulterior-purpose test.

There are, however, more significant prob-lems with the motivation test. In the first place,the use of "objective" criteria to gauge motive(for example, the fact that the officer wasresponding to a robbery in progress when hemade a traffic stop) would lead to an anomalousresult. Consider two hypotheticals. Officer Aobserves a traffic offense. No objective factssuggest to him that anything more serious isinvolved. Officer B observes the same trafficoffense. She knows some additional facts whichsuggest that the vehicle's driver has just com-mitted a murder, but her data falls just shortof the reasonable suspicion necessary to stopthe car under Terry or Brignoni-Ponce.99 Underthe ulterior purpose approach, A's stop of thevehicle will be upheld, but B's will perhaps becondemned as a pretext. A similar result wouldfollow in an inventory search situation follow-ing the removal of a vehicle from the scene ofan accident. The more data suggesting that asearch of the trunk will yield criminal evidence(as long as the data does not provide probablecause for a search under the Carroll-Chambers00

" Elsewhere in fourth amendment law, trial courtshave been required to explore the minds of policeofficers. In some jurisdictions, after Jones v. UnitedStates, 357 U.S. 493 (1958), a search which slightlyprecedes an arrest can be deemed incident to arrestonly if the officer intended to arrest without regardto whether the search proved fruitful. See People v.Cox, 49 Ill. 2d 245, 274 N.E.2d 45 (1971), and State v.Baker, 112 NJ. Super. 351, 271 A.2d 435 (1970),both of which show that objective facts may demon-strate what an officer was thinking when he decidedto utilize a fourth amendment power.

'sSee, e.g., People v. Clark, 8 111. App. 3d 700, 291N.E.2d 33 (1972).

422 U.S. 873 (1975).100 See text accompanying notes 54-61 supra.

doctrine), the more likely will the search becondemned as a pretext. Justice Brennan notedthe dubious wisdom of such results when indisassociating himself from the individual mo-tivation test in his Abel dissent, he wrote: "[I]twould appear a strange test as to whether asearch which turns up criminal evidence isunreasonable, that the search is the more justi-fiable the less there was antecedent probablecause."

101

This brings us to another shortcoming of theulterior-motivation test. If an officer has legalgrounds to stop two traffic offenders, one ofwhom he suspects may have been involved in arecent homicide and one of whom he has noreason to suspect of anything serious, wouldnot most of us prefer that the officer follow hissuspicions and pursue what may be a seriousmatter? As Justice Brennan has indicated in ananalogous situation, we expect zealous conductfrom officers. 02 We expect them to use theirjudicially approved powers to achieve the legit-imate law enforcement purpose of discoveringcriminal evidence. As Mr. Justice Douglasadded in the same case, it makes no sense toaccuse an officer of "bad faith" under suchcircumstances 103

As the ulterior motive test has been adminis-tered, in Abel and in lower court decisions,under my reading of the cases, at least, anulterior motive to discover criminal evidencehas been insufficient to merit exclusion of evi-dence.' °4 Instead, courts have excluded evi-dence only where, in addition to finding anulterior motive, the court concluded that offi-cers have acted in "bad faith." This highlysubjective concept seems to be a function of atleast two variables. A judge who is troubled byjudicial recognition of a particular search andseizure power is more likely to find that it wasexercised in bad faith than is a judge whoapproves the doctrine. Phrased another way,we will probably find more cases condemninglicense stops as pretexts than we will find casescondemning traffic stops as pretexts. 0 5 Sec-

101 362 U.S. at 253 (Brennan, J., dissenting).02 Id. at 252."1 Id. at 245 (Douglas, J., dissenting)." The generalizations which follow are based

upon my examination, over the years, of perhaps75 to 100 decisions where claims of sham have beenraised, including those cited in notes 65-68 supra.

i05 For example, I know of no Illinois appellate

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JAMES B. HADDAD

ondly, "bad faith" is more likely to be foundwhere a judge is not greatly concerned by theneed to discover the type of criminal evidencewhich the officer had in mind. Let a narcoticsdetective enter a home ostensibly to execute atraffic arrest warrant, and we may witness afinding of sham.1 1

6 Let a homicide investigatoruse the same means of entering a home, andwe probably will not witness the suppression ofthe murder weapon found in plain view withinthe home.

The fact that the ulterior-motive test is rarelyused in a pure form, but rather is diluted by asubjective "bad faith" component, suggests thatmany persons are unwilling to penalize zealouslaw enforcement. Agreeing with Mr. JusticeBrennan that such conduct is readily under-standable, they are unwilling to condemn offi-cers who, while staying within the letter of ajudicially-approved doctrine, have used thedoctrine for a purpose not originally intended,namely, the discovery of criminal evidence.Rather than denouncing an officer who pur-sues this legitimate objective through a meansjudicially approved on some other rationale,these persons would reexamine the doctrinewhich makes the misuse possible."0 7 If theyconclude that use for an improper purpose isboth likely and intolerable, they would elimi-nate or narrow the doctrine which makes theabuse possible. In short, they would pursuethe familiar practice of reforming a law whichis subject to use for the "wrong" purpose ratherthan reacting to misuse on a case-by-case basis.

3. The "Hard Choice" Approach

Under a third method of meeting claims ofsham, a court reevaluates the search and sei-

opinion in which a stop following an actual trafficviolation has led to the suppression of evidence undera pretext theory. The same cannot be said of license-inspection stops. See, e.g. People v. Harr, 93 Ill.App. 2d 146, 235 N.E.2d 1 (1968); People v. Lilly, 38Ill. App. 3d 379, 347 N.E.2d 842 (1976).

106 Harding v. State, 301 So. 2d 513 (Fla. App.1974). More than any other decision, this case mademe ask myself what is wrong with an officer's usingan approved fourth amendment doctrine to achievea legitimate law enforcement objective, albeit notone contemplated within the doctrine's rationale.Contrast People v. McNamara, 33 Ill. App. 3d 216,338 N.E.2d 202 (1975) (same facts but no discussionof sham).

107 This was Brennan's approach in Abel. See 362U.S. at 254 (Brennan, J., dissenting).

zure doctrine which law enforcement agentsallegedly have misused. The court once morebalances the societal need for tho particulargovernmental power against the intrusions onprivacy and liberty which are occasioned by theuse of the doctrine. If it sees that a particularpower is rarely used except as a guise for discov-ering evidence, then it is not very likely to beimpressed by the argument that the govern-ment needs the power for some other purpose.In weighing the citizen's interests, the courtincludes in its calculation such intrusions underthe particular doctrine as may be motivated bya purpose other than the one which originallywas used to gain judicial acceptance of thedoctrine. The court then either reaffirms thedoctrine, rejects the doctrine, or narrows itsscope.

Let us exemplify this approach as it wouldbe used by a court which is faced with theclaim that officers frequently make arrests forminor violations as a pretext for possible dis-covery, through a search incident to arrest, ofevidence of more serious crimes. After balanc-ing societal interests against personal libertyand privacy, and calculating whether seriousabuse is likely to be frequent, a court coulddecide to leave present law unchanged. Alter-natively, it could modify either the officer'spower to make custodial arrests for minoroffenses or modify an officer's power to searchincident to arrests for minor offenses. Thus,for instance, for most traffic offenses the policemight be required to use a notice-to-appearmethod of initiating prosecution.106 Or, forinstance, the scope of the search incident to atraffic arrest might be limited to a Tery-typefrisk.

This approach-making a difficult choicebetween reaffirming a fourth amendment doc-trine or narrowing its scope-is the one whichthe United States Supreme Court has usedmost frequently in meeting claims of sham,although admittedly where it has refused tomodify a doctrine, it has left open the possibil-ity of utilizing the bad motivation approach ona case-by-case basis. °9 In Chimel v. California,'10

for example, the Court was confronted by theclaim that arrests will be delayed until the

108 This possibility was left open in Gustafson v.Florida, 414 U.S. 260, 267 (1973) (Stewart, J., concur-ring). See also LaFave, supra note 71, at 158-61.

109 See text accompanying notes 92-93 supra.110 395 U.S. 752, 767 (1969).

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suspect is at home, so as to allow officers tomake a warrantless search under the broadsearch-incident authority which had been rec-ognized in United States v. Rabinowitz.' TheCourt reacted by restricting the permissiblescope of a search incident to arrest to the areawithin the arrestee's reach. In so doing, theCourt eliminated part of an officer's motivationto delay an arrest until the suspect is at home.No doubt the possibility of sham was just onefactor in the Court's reassessment of theproper societal-individual balance to be struckvis-a-vis the doctrine of search incident to ar-rest. Similarly in Coolidge v. New Hampshire,112 aplurality of the Court, by adding an "inadvert-ence" requirement to the plain view doctrine,narrowed an officer's opportunity to use fourthamendment power (for example, the power toenter for purposes of arrest) as a pretext toput the officer in a position where he couldmake a plain view seizure.

On the other hand, in cases where the Courthas been confronted by claims of potential oractual use of a fourth amendment power foran improper purpose, the Court has reaf-firmed, without modification, certain fourthamendment doctrines: search incident to arrestin Robinson" 3 and Gustafson'14 and inventorysearch in South Dakota v. Opperman 1 5 TheCourt concluded in both cases that societalinterests outweighed individual interests, eventaking into account the possible use of thesedoctrines for a purpose not intended. Accord-ingly, it refused to narrow the scope of eitherdoctrine.

Although I might prefer that the Court hadresolved the "hard choice" differently in bothRobinson-Gustafson and Opperman, I believe thatthe Court used the correct approach in bothcases. If I am troubled by doctrines whichpermit the police to arrest and search minor

1 339 U.S. 56 (1950).12 403 U.S. 443 (1971). Concerning possible limita-

tions upon the inadvertency requirement, see generallyJ. HADDAD, ARREST, SEARCH AND SEIZURE §§ 10.25-10.30 (111. Inst. for CLE, 1976). To the extent thatthe inadvertency requirement may make warranlessplain view seizures permissible only if there was alack of antecedent probable cause, see id. at § 10.28and State v. Davenport, 510 P.2d 78 (Alas. 1973), thedoctrine suffers from the same fault as does the badmotivation approach. See text accompanying notes99-101 supra.

I" United States v. Robinson, 414 U.S. 218 (1973).114 Gustafson v. Florida, 414 U.S. 260 (1973).11 428 U.S. 364 (1976).

traffic offenders, and which permit the policeto completely inspect any property which fallsinto their lawful custody, it is not primarilybecause I fear use of these doctrines as pretextsin the hope of discovering criminal evidence.It is rather because the powers on their faceare too broad. The Court has struck the balancein both cases in a fashion which I think givestoo much weight to societal interests.

Realizing that the hard-choice method maywin out merely because it is the least undesira-ble alternative, let me summarize my reasonsfor favoring this approach to meeting claims ofsham:

1. Unlike the use-exclusion doctrine, thesuggested approach is consonant with theprevailing rationale of the exclusionaryrule. It would not breed disrespect byrequiring the exclusion of lawfully ac-quired evidence.

2. Unlike use-exclusion, the hard-choiceapproach does not make law enforcementchoose between exercising a legitimatepower and possibly fatally tainting, 6n arandom basis, an otherwise proper crimi-nal prosecution.

3. As distinguished from the ulterior-purpose test, the rule is easy to administer.Courts decide what police conduct is per-missible and find a fourth amendmentviolation only when officers violate theletter of the law. A judge need engage inno exploration of an officer's motive.

4. Unlike the ulterior-purpose test, thehard-choice approach does not penalize anofficer for using a judicially-sanctionedpower to achieve a legitimate law enforce-ment objective: namely, the discovery ofcriminal evidence. Why should we hail asan effective advocate the lawyer who usesto his client's advantage a law which wasintended for some other purpose, whilepointing the finger of shame at an officerwho has used search-and-seizure powersto best advantage without violating theletter of the law?

5. The true concern of proponents ofboth the use-exclusion approach (as selec-tively advocated) and the ulterior-purposetest (as administered so as to exclude evi-dence only when bad faith is found), is theexistence of certain governmental powers-and not their abuse by officers who areseeking criminal evidence. This focus is

JAMES B. HADDAD

entirely proper. The hard-choice methodis the only approach which places the em-phasis where it should be.Before concluding, let me respond to a pos-

sible criticism of the hard-choice approach.Some would say that once a doctrine' is re-evaluated and the balance struck, either asbefore or in a manner more favorable to indi-vidual liberty and privacy, some use of thedoctrine for an unintended purpose will stilloccur. If, for instance, police remain free tostop traffic offenders, as presumably they will,pretext traffic stops will occur. The hard-choiceapproach seems to say, "So be it. That is theprice society must pay for enforcing the trafficcode." I would respond by observing that thisresult does not trouble me greatly. If the powerto curb a driver who has committed a trafficoffense is tolerable-and recall we are discuss-ing cases where such an offense actually hasoccurred-then the officer's decision to use thepower because he thinks something more seri-ous may be involved is also tolerable.

Finally, to those who find my reasoningfaulty and my conclusions untenable, let meaddress a word in mitigation of my case byreturning to my opening remarks. My positionis understandable, if not defensible, whenviewed as a result of the process of lecturingpolice officers. After urging officers to learnthe scope and limits of their fourth amendmentpowers, one feels awkward admonishing them,as I did for years, not to use their judicially-approved powers so as to maximize the legiti-mate law enforcement objective of discoveringcriminal evidence. Eventually my schizophrenicexhortations began to echo in my ears likesome mock-Spenserian refrain: "Be wise, bewise, be very wise. But be not too wise." Littlewonder I came to favor an approach whichwould narrow police power, but then wouldallow that power to be exercised, within theletter of the law, to maximize legitimate lawenforcement objectives, including the discoveryof criminal evidence.

III. FOURFOLD PROBABLE CAUSE

Having criticized the "well-delineated excep-tion" proposition in Part I and the use-exclu-sion proposal in Part II, the author hopes toprovide an affirmative contribution to fourthamendment analysis in the concluding segmentof this article. My thesis is that there exist fourdifferent kinds of probable cause: "crime," "of-

fender," "search" and "seizure."1 1 6 Various the-ories under which fourth amendent intrusionsare permitted should be analyzed not onlyaccording to the quantum but also the type ofprobable cause which each theory requires. Afourfold probable cause analysis can preventdoctrinal confusion, provide a partial checklistfor evaluating the validity of a search or aseizure, aid our understanding of the issues insome major Supreme Court cases, and suggestsome unresolved questions which often areoverlooked. On the other hand, the fourfoldprobable cause concept, like any schematic de-vice which is offered to aid analysis, has itslimitations. By no Procrustean trick can everyfourth amendment issue be made to fit some-where within this scheme. Nor is the conceptan end in itself. Its utility is exhausted at thepoint where it no longer aids an individual'sown thinking about fourth amendment prob-lems.

That caveat set forth, let me define my termsand then apply the concept to some theoriesunder which searches and seizures are permit-ted, at the same time dissecting some currentfourth amendment issues with the aid of thefourfold probable cause analysis.

Definition of Terms

Crime probable cause ordinarily refers to theprobability that a criminal offense has been oris being committed. Absent such a probability,an arrest, with or without a warrant, isinvalid.11 7 On the other hand, whether thereexists a probability that a crime has been or isbeing committed is entirely irrelevant to thevalidity of a search under a theory of consent.s

Offender probable cause refers to the probabil-ity that a particular person has committed or iscommitting a criminal offense. It is necessaryfor an arrest, with or without a warrant.1 1 9

Offender probable cause is not required for

116 This concept originated in a discussion betweenAttorney James B. Zagel and myself amidst prepara-tion of our materials for the 1975 NorthwesternUniversity Short Course for Prosecuting Attorneys.See note 3 supra. The analysis can be viewed as aneffort to answer the question "Probable cause as towhat?" which Professor LaFave asked at the ShortCourse for Criminal Defense Attorneys in the mid-1960's. See also LaFave, Search and Seizure: "TheCourse of True Law . . .Has Not .. .Run Smooth,"1966 U. ILL. L. F. 255, 260-262.

117 See text accompanying notes 127-28 infra.118 See text accompanying notes 165-67 infra.119 See text accompanying notes 127-28 infra.

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the issuance of a search warrant, that is, H'shome can be searched under a warrant withoutany probability that H committed a crime, aslong as other search warrant requirements havebeen met.120

Search probable cause refers to the probabilitythat a search will prove fruitful. In some con-texts it is essential, such as the "moving vehicle"exception to the warrant requirement, wheresearch probable cause refers to the probabilitythat evidence of a crime will be discovered, 121

or in the stop-and-frisk context, where therequirement refers to the probability that afrisk will yield a weapon. 122 On the other hand,search probable cause is not essential to intru-sions under some other fourth amendmenttheories. For instance, an officer's right tosearch incident to arrest does not depend uponthe probability that the search will produceeither criminal evidence or a weapon. 123

Seizure probable cause refers to the probabilitythat an item which is to be taken and carriedaway either is contraband or otherwise consti-tutes evidence of a crime."2 It is necessary forthe seizure of property which has been ob-served in plain view. 125 It is not essential to theseizure of property under the inventory searchdoctrine.

126

Keeping these definitions in mind, let usnow review some theories under which fourthamendment intrusions are permitted.

A. Seizure Under Search Incident to Arrest

To seize an object under the doctrine ofsearch incident to arrest, an officer needs prob-able cause to believe that a crime has been or isbeing committed (crime probable cause) andprobable cause to believe that the personsearched has committed the crime (offenderprobable cause). He does not need probablecause to believe that the search will provefruitful (search probable cause). It is an openand often overlooked question whether to takeand carry away the arrestee's property on a

120 See text accompanying notes 158-62 infra.12! See text accompanying notes 168-76 infra.'22 See text accompanying note 131 infra.in See text accompanying notes 129-31 infra.124 "Seizure" probable cause is least familiar. Per-

haps the earliest United States Supreme Court discus-sion of this requirement came in Stanley v. Georgia,394 U.S. 557, 571 (1969) (Stewart, J., concurring). Seealso Coolidge v. New Hampshire, 403 U.S. 443, 466-67 (1971).

12' See text accompanying notes 135-41 infra.126 See text accompanying notes 190-92 infra.

search-incident theory the officer needs proba-ble cause to believe that the property is contra-band or evidence of a crime (seizure probablecause).

In discussing the probable cause which isnecessary for a constitutionally valid arrest, weoften telescope the separate requirements ofcrime probable cause and offender probablecause by saying that a lawful arrest of D re-quires probable cause to believe that D hascommitted an offense. This combination oftwo different concepts blurs a distinction whichsome writers believe existed at common lawand which at one time was reflected in the lawof some American jurisdictions.1 27 Under thisview, probable cause to believe that a crimehad been committed and thatD had committedit did not suffice to validate a warranless arrestin a situation where, in fact, no crime hadbeen committed. If there was no crime, thearrest was illegal no matter how reasonable theofficer's conclusion that a crime had been com-mitted. On the other hand, at common law, asnow, if a crime had been committed but theofficer's reasonable conclusion that D had com-mitted it proved erroneous, D's warrantlessarrest would still be considered lawful. Thus,under this view, a lawful warrantless arrestnecessitated something more than crime prob-able cause to be coupled with offender probablecause. Today, however, crime probable causeand offender probable cause suffice to validatean arrest.

12

A recent dispute arose from the claim thatthe doctrine of search incident to arrest re-quires search probable cause. In United Statesv. Robinson,129 the defendant asserted that the

127 Compare Hall, Legal and Social Aspects of ArrestWithout a Warrant, 49 HARV. L. REV. 566, 568-78(1936), with R. PERKINS, CRIMINAL LAW 870 n.7(1957). Until January 1, 1964, Illinois statutes re-quired that a felony actually have been committedfor a warrantless felony arrest to be valid. See ILL.REV. STAT. ch. 38, § 657 (1961). See also Alvarez v.Reynolds, 35 Ill. App. 2d 54, 181 N.E.2d 616 (1962);McKendree v. Christy, 29 Ill. App. 2d 195, 172N.E.2d 380 (1961). But see Aspen, Arrest and ArrestAlternatives: Recent Trends, 1966 U. ILL. L.F. 241, 244& n.20.

128 Illinois, for instance, ended the distinctionwhen it adopted its 1963 Code of Criminal Proce-dures. See ILL. REV. STAT. ch. 38, § 107-2(c) (1975).The present author knows of no twentieth centuryfourth amendent United States Supreme Court opin-ion in which the distinction is reflected.

129 414 U.S. 218 (1973). See generally text followingnote 61 supra.

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JAMES B. HADDAD

officers had no right to search his personincident to arrest without having data establish-ing some probability that the search wouldyield criminal evidence or a weapon. 30 Theprosecution countered by asserting that a validcustodial arrest automatically justifies a searchincident to arrest. The United States SupremeCourt agreed with the prosecution's positionand held that the officer is not required toengage in an estimation that the search willprove fruitful before he makes a full searchincident to arrest. In other words, search prob-able cause is not required for a search incidentto arrest.

Despite the Court's holding in Robinson,questions asked by both the prosecution andthe defense at hearings on motions to suppressare often directed at search probable cause. Ifthe prosecution's theory, or one of its theories,is that the evidence was discovered within thelimited confines of a lawful stop-and-frisk, theofficer does need to demonstrate a certainquantum of probability (reasonable suspicion)that the frisk would yield a weapon (searchprobable cause).131 On the other hand, if theprosecution can establish the elements of avalid arrest, including crime probable causeand offender probable cause, inquiries directedto the probability that the search would provefruitful are wholly irrelevant. The fourfoldprobable cause analysis serves as a reminder,particularly to prosecutors and judges, of thedifferent probable cause requirements of stop-and-frisk and of search incident to arrest. Theanalysis indicates that the court must be con-cerned not only with the different amounts ofprobable cause (reasonable suspicion versus fullprobable cause) but also with the differenttypes of probable cause necessary under eachdoctrine.

The unanswered probable cause questionposed by the doctrine of search incident toarrest, and one which will probably remainunexplored until defense attorneys pursue theissue more vigorously than they have done inthe past, is whethei! under the doctrine ofsearch incident to arrest a police officer cantake and carry away the property of an arresteewithout probable cause to believe that it iscontraband or constitutes evidence of a crime.

10 Robinson's search probable cause argumentmight be read so as to be limited to the minor trafficoffense context in which it arose.

131 Terry v. Ohio, 392 U.S. 1 (1968).

Phrased another way, is seizure probable causenecessary to justify retention of property underthe doctrine of search incident to arrest? Con-sider the following hypothetical:

Officer Baker lawfully arrests Cain inCain's apartment .for an attempted bur-glary of a home alleged to have beencommitted one hour earlier. Bakersearches Cain's person and finds a redcapsule containing an unknown substance.He also opens and searches a drawerwithin Cain's reach and finds another redcapsule. Baker also notes that lying withinCain's reach is a pair of sneakers capableof making a distinct mark upon dirt orupon a wet surface. As he stands there,Officer Baker has no probable cause tobelieve that either the capsules or thesneakers constitute evidence of either theburglary or any other crime. Can he nev-ertheless take and carry away the itemsunder the doctrine of search incident toarrest?Kremen v. United States,132 a cryptic 1957 per

curiam opinion, may be the only United StatesSupreme Court case focusing upon the issue.In Kremen, F.B.I. agents made lawful arrests ina cabin and conducted a full search of thecabin, as was permissible under the then-pre-vailing principles of search incident to arrest.The agents seized and carried to their officetwo hundred miles away the entire contents ofthe cabin. They took literally hundreds ofitems, including lipstick, eight bath towels, arecording of Mendelssohn's Violin Concerto,and a ping pong net with two holders. Withoutcitation of authority, and without providingany analysis, the United States Supreme Courtinvalidated the seizure. It remained for JusticeHarlan, a dozen years later, to provide a ration-ale for the Court's decision: "Kremen simplyprohibits the police from seizing the entirecofntents of a building, without consideringwhether the property they take is relevant tothe crime under investigation; it does not barthe removal of all property that may reasonablybe considered evidence of a crime.' 33

Under Harlan's formulation, even under asearch incident to arrest theory, to seize anitem the police must have at least some reasonto believe that it constitutes evidence of a crime.

132 353 U.S. 346 (1957)."' Van Cleef v. New Jersey, 395 U.S. 814, 817

(1969) (Harlan, J., concurring).

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It is not clear, however, whether the requireddegree of probability is "possible relevance,""reasonable suspicion" or "probable cause."Nor is it clear whether the necessary degree ofprobability is less where the evidence relates tothe crime for which the arrest has been made.In our hypothetical, for instance, the sneakerscould perhaps be probative of the crime ofattempted burglary; but the capsules have noapparent evidentiary value to that charge. Thelaw might allow the seizure of the capsulesonly if there is probable cause to believe thatthey are contraband but permit seizure of thesneakers under some lesser standard of proba-bility. From a doctrinal point of view, then, theconcept of seizure probable cause raises impor-tant questions which have not yet been an-swered in the context of a search incident to anarrest.

In actual practice police officers fairly fre-quently take and carry away an arrestee's prop-erty with no more than a glimmer of hope thatfurther investigation or a crime laboratoryanalysis will establish that the property is con-traband or has evidentiary value. Even thoughuseful analogies, particularly in "plain view"cases, are available to defense counsel, defenselawyers often allow such speculative seizures ofthe arrestee's property to go unchallenged.13 4

Absent a Supreme Court declaration that sei-zure probable cause is unessential to a seizureunder a search incident to arrest, the defenseshould pursue the issue when the facts makeplausible an argument based upon the absenceof seizure probable cause. Attention to theconcept of four distinct types of probable causewill remind the defense of this argument.

B. Seizure Under Plain View Doctrine

Although it is impossible to generalize aboutcrime, offender, and search probable causerequirements under the plain view exceptionto the warrant requirement, seizure probablecause is necessary for the police to take andcarry away property under a plain view theory.

'34 See text accompanying notes 135-41 infra for adiscussion of the plain view decisions. For an exampleof a search incident to arrest decision where defensecounsel apparently failed to raise the seizure probablecause issue, see People v. Hightower, 20 Ill. 2d 361,169 N.E.2d 787 (1960), cert. denied, 365 U.S. 845(1961). For a decision where the seizure probablecause issue was successfully raised in a search incidentto arrest situation, see State v. Elkins, 245 Ore. 279422 P.2d 250 (1966).

Subject to qualifications not relevant to ourdiscussion,13 1 the plain view doctrine permits apolice officer to seize contraband or criminalevidence which he observes while standing in aplace where he has a right to be or whilelooking into a place which he has a right tosearch. His right to be in that place or his rightto search that place-a necessary prerequisiteto the invocation of the plain view doctrine-may depend upon any one of a number oftheories. For instance, the officer may haveentered to make an arrest, or he may have.been conducting a search under the authorityof a search warrant. Before deciding the valid-ity of a plain view seizure, we must considerwhat kinds and quanta of probable cause wereneeded to justify the entry to arrest or theissuance of the search warrant.

The common denominator of plain view sei-zures is seizure probable cause. Even thoughthe United States Supreme Court has neverinvalidated a plain view seizure for want ofseizure probable cause, and even though casesfrom other courts appear to overlook the re-quirement,'136 when defense counsel raises theissue, reviewing courts today appear unani-mous in the conclusion that an officer cannot,under a plain view theory, seize and carry awayitems without probable cause to believe thatthe items are contraband or constitute evidenceof a crime.13 7 For example, if, while looking ina place which they have a right to search undera warrant which commands the seizure of her-oin, officers discover bonds or securities, theirright to seize those commerical documents willdepend upon the presence of probable causeto believe that the documents are stolen or insome way are evidence of a crime.iss

131 1 refer to the reasonable expectation of privacyqualification. See, e.g., People v. Triggs, 8 Cal. 3d884, 506 P.2d 232, 106 Cal. Rptr. 408 (1973); Cohenv. Superior Court, 5 Cal. App. 3d 429, 85 Cal. Rptr.354 (1970). I also refer to the "inadvertency" limita-tion. See note 113 supra and accompanying text.

136 See, e.g., People v. Myles, 2 Ill. App. 3d 955,275 N.E.2d 691 (1971).

137 See, e.g., Christmas v. United States, 314 A.2d473 (D.C. App. 1974); People v. Hermesch, 49 App.Div. 2d 587, 370 N.Y.S.2d 152 (1975); People v.Eastin, 8 Ill. App. 3d 512, 289 N.E.2d 673 (1972);State v. Sagner, 12 Ore. App. 459, 506 P.2d 510(1973); People v. White, 46 Mich. App. 195, 207N.W.2d 921 (1973); Shipman v. State, 291 Ala. 484,282 So. 2d 700 (1973).

138 See, e.g., Commonwealth v. Hawkins, 280N.E.2d 665 (Mass. 1972). See also Commonwealth v.Wojcik, 358 Mass. 623,266 N.E.2d 645 (197 1). Compare

JAMES B. HADDAD

Consider again the hypothetical discussedabove, this time placing the capsules and thesneakers out of the reach of the arrestee butwithin the plain sight of the arresting officer.Because of spatial limitations adopted in Chimelv. California,'3 9 the officer cannot seize theitems under a search incident to arrest theory.The seizures are proper, if at all, only if theplain view theory can properly be invoked.This, in turn, will require an assessment of theprobability that the items are contraband orhave evidentiary value. Under the facts statedin the hypothetical, there is no seizure probablecause as to either the capsules or the sneakers.Their seizure under a plain view theory wouldbe impermissible.

The issue which is most frequently disputedas a result of the seizure probable cause re-quirement under the plain view doctrine iswhether the police can closely examine "plainview" items to determine whether there is sei-zure probable cause. Can they check the serialnumber of the bonds or the serial number of atelevision set against a "hot sheet" which listsstolen property? Can they pick up boots toexamine their soles for tell-tale evidence relatedto a home invasion? Or does such conductitself amount to a forbidden warrantlesssearch? Although the "close look" cases reachno unanimous result, they all implicitly ac-knowledge the seizure probable cause require-ment under the plain view doctrine. 4

The fourfold probable cause analysis, uti-lized in plain view cases, reminds us that theright to look is not the right to take. The rightto see is not the right to seize. Defense lawyersshould not forget to argue the lack of seizureprobable cause in appropriate plain view cases.Nor should the prosecution forget its obligationto elicit facts to establish that the items seized,at the time of their taking, could reasonably bethought to be contraband or evidence of a

Commonwealth v. DeMasi, 283 N.E.2d 845 (Mass.1972).

39 395 U.S. 752 (1969).140 "Close look" cases include United States v.

Clark, 531 F.2d 928 (8th Cir. 1976); United States v.Gray, 484 F.2d 352 (6th Cir. 1973), cert. denied, 414U.S. 1158 (1974); Wilson v. State, 30 Md. App. 242,351 A.2d 437 (1976); State v. Murray, 8 Wash. App.944, 509 P.2d 1003, affd, 84 Wash. 2d 527, 527 P.2d1303 (1974), cert. denied, 421 U.S. 1004 (1975). See alsoStanley v. Georgia, 394 U.S. 557, 571 (Stewart, J.,concurring). Compare State v. Proctor, 12 Wash. App.274, 529 P.2d 472 (1974).

crime.141 If a defense lawyer is alert, the prose-

cutor's proof that an item seized was in plainview from a vantage point where the officerhad a right to be will be insufficient, without ademonstration of seizure probable cause, touphold a-seizure un.der a plain view theory.

C. Search and Seizure of Abandoned Property

Even without crime, offender, search or sei-zure probable cause, police officers can searchor seize abandoned property without beingguilty of a violation of the rights of the personwho abandoned the property. For fourthamendment purposes at least, such a person isno longer a claimant of the goods. 142 With nodanger of violating that person's constitutionalprotections, the police can intrude against theproperty without data demonstrating any par-ticular degree or type of probability. The dis-tinction should be kept in mind in the class ofcases where "abandonment" and "plain view"may both be plausible theories for justifying aseizure: the "drop" cases. Consider the follow-ing hypothetical:

While sitting on a park bench in jurisdic-tion X, Dore spots Officer Elwin walkinghis beat. Dore casually places a cigarettepackage on the bench about a foot fromhis thigh. Elwin seizes the packet, inspectsit, and discovers heroin. Before he seizedit, Elwin had no probable cause to believethat the cigarette package contained con-traband or evidence of a crime. Injurisdic-tion X, absent such probable cause, theseizure cannot be upheld on a plain viewtheory because under the case law of X,inspection of Dore's property withoutsearch probable cause would itself amountto an unreasonable search. Can the seizurenevertheless be upheld?The answer depends upon whether the

property has been abandoned. Because an in-

141 In jurisdictions in which an inadvertency re-quirement limits plain view seizures, see note 112supra and accompanying text, the prosecution mayhave to walk a narrow path. It will be required toshow that before they entered to arrest (or undersome other valid theory), the police did not havesearch probable cause for a particular item, but thatthey had seizure probable cause for that item beforethey took it away.

142 Abel v. United States, 362 U.S. 217, 241 (1960).See also Rios v. United States, 364 U.S. 253 (1960);Hester v. United States, 265 U.S. 57 (1924).

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EXCEPTIONS, SHAM AND PROBABLE CAUSE

tent permanently to give up all claim to prop-erty is usually considered an essential elemeitof abandonment, not every case in which aperson places or drops property somewhereallows the property to be seized on an abandon-ment theory. If seizure probable cause is lack-ing, and if the property has not been aban-doned, then the police may not seize it even ifthe property is in plain view. Many cases involv-ing "dropped" evidence fail to articulate thetheory under which the seizure is justified.Some seem to use "plain view" and "abandon-ment" interchangably. 4 3 In those instanceswhere seizure probable cause arguably waslacking, and where the conduct of the defend-ant arguably did not amount to abandonment,the fourfold probable cause analysis shouldlead defense counsel to press the court todistinguish between abandonment theory andplain view theory. The distinction can lead tothe suppression of evidence which otherwisemight be admitted.

D. The Issuance of a Search Warrant for CriminalEvidence

The issuance of a valid warrant commandingthe seizure of contraband or criminal evidencerequires information demonstrating a probabil-ity that a crime has been committed (crimeprobable cause). The information must alsoestablish a probability that the item named inthe warrant (a) constitutes evidence of thatcrime and (b) presently is located at the placeto be searched. 144 In other words, a particulartype of search probable cause is required. Theissuance of a search warrant does not necessi-tate offender probable cause. 145 Nor do ques-

'13 See, e.g.,People v. Brasfield, 28 Ill. 2d 518, 192N.E.2d 914 (1963), cert. denied, 375 U.S. 980 (1964);People v. Jackson, 98 Ill. App. 2d 238, 240 N.E.2d 421(1968). For an automobile case which correctly sepa-rates abandonment theory (with no seizure probablecause requirement) from plain view theory (with theseizure probable cause requirement), see People v.Hermesch, 49 App. Div. 2d 587, 370 N.Y.S. 2d 152(1975).

"' People v. Francisco, 44 Ill. 2d 373, 376, 255N.E.2d 413, 415 (1970).

145 People v. Simmons, 330 Ill. 494, 161 N.E. 716(1928); People v. Daugherty, 324 Ill. 160, 154 N.E.907 (1926). For a recent example of a search warrantwhich was issued without any reason to believe thatthe property owner had committed the crime inquestion, see People ex rel. Carey v. Covelli, 61 Ill. 2d394, 336 N.E.2d 759 (1975). See also T. TAYLOR, supranote 6, at 28.

tions of seizure probable cause arise at the timeof issuance.1

46

The discussion which follows treats two prac-tical search warrant problems which appearunder a fourfold probable cause analysis. Theauthor, at a more theoretical level, then reflectsupon the absence of an offender probablecause requirement for the issuance of searchwarrants.

1. Circumstantial Evidence and Search ProbableCause

Sometimes police officers or prosecutors re-quest the issuance of search warrants withoutclaiming that direct evidence establishes theprobability that the item named for seizure isat the place to be searched. In such casesneither the affiant nor the affiant's source hasobserved the contraband or the criminal evi-dence in the specified place. Nevertheless, thegovernment agents urge that circumstantial ev-idence demonstrates the required probability.What type of circumstantial evidence will suf-fice?

The typical dispute is whether a probabilitythat D has committed a crime (crine and of-fender probable cause) is enough to impel theinference that evidence of that crime is locatedin his home, his car or his garage. If a womanhas sold narcotics on the street this morning, isthis sufficient, without other data, to justifythe search of her apartment this afternoon? Ifa man committed a burglary last night, is thissufficient to establish probable cause for theissuance of a search warrant for his garage thisafternoon?

Even a half century ago, defense lawyerswere arguing that the probability that theirclients had committed recent crimes did not,by itself, establish probable cause to searchtheir property. 147 Nevertheless, the issue some-times is overlooked and, when it is urged upona court, the results vary widely. Most courtsaccept the search probable cause requirementas an abstract concept. They recognize thatcrime probable cause and offender probablecause, by themselves, do not suffice to justifythe issuance of a warrant to search the sus-

146 At execution seizure probable cause issues mayarise if the officers seize an item not named in thewarrant. See text accompanying notes 136-37 supra.

147 See, e.g., People v. Billerbeck, 323 Ill. 48, 153N.E. 586 (1926); People v. Prall, 314 Ill. 518, 145N.E. 610 (1924).

19771

JAMES B. HADDAD

pected offender's property. Courts do, how-ever, vary greatly in determining how muchmore, besides crime and offender probablecause, is required.

148

2. Staleness and Probable Cause

As Justice Marshall recently noted, crimeand offender probable cause do not growstale.1 49 Once the police have acquired probablecause to believe that D has committed an of-fense, the mere passage of time before theyarrest D creates no additional probable causeproblem. 50 Search probable cause, however,does grow stale, and this creates difficulties insearch warrant cases. Even if an affiant haspersonally observed heroin in a particularapartment, the magistrate must be concernedabout whether the heroin is still likely to bepresent at the time the search warrant issought.

The dimunition of search probable causewith the passage of time has given rise to twomain classes of disputes. In the first, the affi-davit does not expressly say when the relevantinformation was observed.151 The affiant maystate that he purchased and used marijuana inX's apartment and saw an additional quantitythere before he left; but if the affiant does notsay when he made these observations, the mag-istrate cannot determine whether there is apresent probability that marijuana is at X'sapartment. Obviously, it makes a differencewhether the observations were made an hourago or a year ago. This error in draftsmanshiphas occurred so frequently that a split in au-

141 See United States v. Bailey, 458 F.2d 408 (9thCir. 1972); United States v. Flanagan, 423 F.2d 745(5th Cir. 1970); People v. Wright, 37 N.Y.2d 88, 332N.E.2d 331 (1975); Commonwealth v. Kline, 234 Pa.Super. 12, 335 A.2d 361 (1975); State v. Joseph (114R.I. 596,337 A.2d 523 (1975). Compare United States v.DiNovo, 523 F.2d 197 (7th Cir.), cert. denied, 423 U.S.1016 (1975); United States v. Spach, 518 F.2d 866 (7thCir. 1975); United States v. Olt, 492 F.2d 910 (6th Cir.1974). Often the issue is complicated by a passage oftime between the crime and the search.

149 423 U.S. 411, 449 (1976) (Marshall, J., dissent-ing).

"' Occasionally, however, new information point-ing to the innocence of the suspect may destroypreviously established offender probable cause. Com-pare United States v. Coughlin, 338 F. Supp. 1328(E.D. Mich. 1972) with People v. Gwin, 49 Ill. 2d 255,274 N.E.2d 43 (1971).

"' See, e.g., Dean v. State, 46 Ala. App. 365, 242So. 2d 411 (1970); Bailey v. State, 131 Ga. App. 276,

.205 S.E.2d 532 (1974); State v. Oropeza, 97 Idaho387, 545 P.2d 475 (1976).

thority had developed between courts whichstrain to find that the affiant or hearsay source"obviously" was referring to recent observa-tions, and courts which refuse to cover for thedraftsman's mistake by giving a "present tense"construction to the affidavit. 5 2

The second kind of case involves a moresubstantive issue. Here the affiant states whenthe last observations were made, and the issueis whether that was too long ago. 53 The fre-quency and the type of the criminal activity arerelevant to the search probable cause calcula-tion, so that no fixed period can be describedas "permissible" or as "too long.""154 Sometimesa passage of six days from the last observationswill destroy the requisite probable cause. 55

Sometimes three months will not.156 To saythat various factors must be weighed, however,is not to say that the decisions can all bereconciled. Some cases which find probablecause to search an offender's property manyweeks after the last relevant observations seemso implausible that one might conclude thatthe judges have decided that it is proper toinvade a probable offender's privacy, underthe authority of a search warrant, even withoutsearch probable cause. 57 To this subject, wenow turn our attention.

3. Reflections Upon Search Warrants and OffenderProbable Cause

The commentators and reviewing courtjudges agree that under present law a warrantcan issue to search H's home or business with-out any reason to believe that he has been aparty to criminal activity. 58 The warrant canissue upon the demonstration that there is aprobable cause to believe that specified evi-

"' See State v. Richardson, 22 Ariz. App. 449, 528P.2d 641 (1974); State v. Boudreaux, 304 So. 2d 343(La. 1974). Compare authorities cited in note 151 supra.1 See United States v. Harris, 403 U.S. 573, 579

(1971); People v. Holmes, 20 I11. App. 3d 167, 312N.E.2d 748 (1974); People v. Siemieniec, 368 Mich.405, 118 N.W.2d 430 (1962); Wilson v. State, 47 Ind.582, 333 N.E.2d 755 (1975); People v. Morrison, 13Ill. App. 3d 652, 300 N.E.2d 325 (1973).

14 See generally LaFave, supra note 116, at 264-66."'See People v. Wright, 367 Mich. 611, 116 N.W.

2d 786 (1962).156 See People v. Mason, 15 Il. App. 3d 404, 304

N.E.2d 466 (1973), where 107 days passed betweenobservation of the last datum and the issuance of awarrant commanding the search of a home, garage,and car and the seizure of several specified lost orstolen credit cards and a lost or stolen drivers license.

"5 See especially id.158 See note 44 supra.

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EXCEPTIONS, SHAM AND PROBABLE CAUSE

dence of a crime is presently located at H'sproperty. Professor LaFave is troubled by thisabsence of an offender probable cause require-ment. He has suggested that without a showingthat the criminal evidence could not otherwisebe discovered (as, for instance, through a sub-poena), a search warrant should not issue forH's property unless there is information linkinghim to a crime.159 Surely the reasonablenessclause of the fourth amendent could be utilizedto achieve such a result. The case law recog-nizes that sometimes it is not reasonable toissue a search warrant even if the probablecause requirement of the fourth amendment'ssecond clause is fully satisfied. For instance, awarrant commanding the removal of a bulletfrom someone's body may be unreasonableunder certain circumstances even if crime, of-fender and search probable cause are present.16

Similarly, the present author would stronglyargue that crime and search probable causeare not sufficient to justify a search even of asuspect's home for the purpose of obtaininghandwriting exemplars when such exemplarsmight readily be available elsewhere.' 61

There is, however, another way to view ab-sence of an offender probable cause require-ment in search warrant cases. If we feel that aninnocent person should have more privacy asto his house or his car than a probable of-fender, we may conclude that where offenderprobable cause is present, we should be lessconcerned about search probable cause. Atleast where the police have probable cause toarrest H and where they seek prior judicialapproval, why not allow something less thantraditional probable cause to suffice for theissuance of a warrant to search H's property?Where offender probable cause is present, rea-sonable suspicion that criminal evidence wouldbe found should perhaps permit issuance ofthe warrant. Although judicial opinons purportto require "full" probable cause, in actual prac-tice many seem to be satisfied with reasonablesuspicion where it is a probable offender whoseprivacy is being invaded. 62

19 LaFave, supra note 71, at 159-60.'6 See, e.g., Adams v. State, 260 Ind. 663, 299

N.E.2d 834 (1973), cert. denied, 415 U.S. 935 (1974)." Thus, exemplars may constitute a type of evi-

dence which is even lower on the list of "seizable"materials than is "mere evidence." See J. HADDAD,supra note 3, at § 16.25.

12 The generalization is based upon my readingof decisions of the type cited in notes 153-57 supra.

Can such a dimunition of the search probablecause requirement be defended without doingviolence to fourth amendment theory? Somemight argue that the amendment's warrantclause is not as flexible as the reasonablenessclause. Reasonableness varies with the circum-stances, but the term "probable cause," as usedin the warrant clause, cannot mean one thingin one search warrant case and another in adifferent search warrant case.

Camara v. Municipal Court'63 appears to pro-vide a complete answer to the argument thatsearch warrant probable cause cannot vary withthe circumstances. In Camara, judicial warrantspermitting health inspections were permittedto issue without a demonstration of either prob-able cause to believe that a crime has beencommitted or probable cause to believe thatcriminal evidence would be found. If the Ca-mara dissenters had prevailed, thus allowingsearch warrants to issue only upon a showingof traditional crime and search probable cause,then the fourth amendment's warrant clause inmany cases would prevent striking a properbalance between the rights of the citizen andthe needs of society. Courts could still sanctionsearches which had received no prior judicialapproval, even on less than probable cause.They could also require a showing of crimeand search probable cause for searches con-ducted with prior judicial approval. However,they would not be able, as a requirement ofreasonableness, to demand prior judicial ap-proval in any instance where crime or searchprobable cause was lacking. Thus, for instance,they would not be permitted to uphold a war-rant for the seizure of fingerprints on less thanfull probable cause.164 They would have tochoose between requiring a warrant basedupon full crime and search probable cause orpermitting a warrantless seizure of prints, per-haps without full probable cause. The choicemight lead a court to excuse prior judicialapproval in a situation where a proper balancewould require such approval, even though tra-ditional crime and search probable cause are

16- 387 U.S. 523 (1967).164 Thus, the Supreme Court would be required to

withdraw the dictum in Davis v. Mississippi, 394 U.S.721, 738 (1969), which suggested that under a war-rant, but without full offender or search probablecause, government agents might validly secure com-parison fingerprints. [I assume that "full" crimeprobable cause is necessary even under the Davisdictum. See ARIZ. REv. STAT. § 13-1424 (1973).]

1977]

JAMES B. HADDAD

lacking. 165 The Camara majority, rather thanuphold so rigid a rule, permitted warrants toissue without crime and search probable cause.

E. Seizures Following Consent Search

A search under a valid consent is permissiblewithout crime, offender or search probablecause. The validity of a seizure of an objectdiscovered in a consent search, however, maydepend upon the probability that the object iscontraband or constitutes evidence of a crime.The typical consent to search probably wouldnot be construed to permit the officer to takeand carry away any object which he comesacross in the course of the search. Indeed, onecan argue that a consent to search is ordinarilynot a consent to take even items which haveapparent evidentiary value.

166

Plain view principles, however, can justifythe typical seizure of evidence discovered inconsent searches even where there is no consentto carry away anything. If an officer, lookingin a place where he has a right to look underthe authority granted by consent, discovers anobject, plain view doctrines allow him to takeand carry away that item if there is probablecause to believe that it constitutes evidence of acrime .167

Thus, practical lessons can be learned from

165 As a direct result of the "full" search probablecause requirement for the issuance of a search war-rant under traditional theory, some courts-realizingthat no warrant could issue for want of probablecause-have approved non-emergency warrantlesssearches of various types. See, e.g., State v. Chapman,250 A.2d 203, 211 (Me. 1969), in which the courtapproved a warrantless homicide scene search inpart because of the realization that, for want ofsearch probable cause for some specified item, nosearch warrant could issue.

166 Several cases hold that the consenting party canlimit the scope of the search authorized. See, e.g.,United States v. Dichiarinte, 445 F.2d 126 (7th Cir.1971); People v. Schmoll, 383 I1. 280, 48 N.E.2d 933(1943). 1 know of none, however, which decideswhether a search conditioned upon the police agree-ment to seize nothing would prevent officers fromcarrying away contraband or other criminal evidencediscovered during the authorized search. PerhapsSchmoll, supra, presented this issue, although it is notclear whether the police came upon the disputedrecords while keeping within the limits of the author-ized search. Nor is it clear whether the police hadseizure probable cause for the records which werethe subject of the controversy.

67 See People v. Stewart, 10 Ill. App. 3d 187, 293N.E.2d 169 (1973).

a fourfold probable cause analysis in consentcases. The defense lawyer should rememberthat absent a broadly worded consent, officerscannot in a consent search seize items withoutseizure probable cause.16 On the other hand,prosecutors should keep in mind that once anofficer during a consent search comes acrossan object for which seizure probable causeexists, the breadth of the consent is largelyirrelevant. An effort to revoke the consent atthat point cannot operate to invalidate theseizure of criminal evidence because such aseizure is permissible under plain view princi-ples .

69

F. Searches Under the Moving Vehicle Exception

Under the Carroll170 doctrine, as refined inChambers v. Maroney..' and interpreted in Texasv. White, 7

1 without a warrant the police cancurb a moving vehicle and search it if theyhave probable cause to believe that a crime hasbeen committed (crime probable cause) andprobable cause to believe that evidence of thatcrime is in the vehicle (search probable cause).Offender probable cause is irrelevant. Thus asearch under the "moving vehicle" exception ispermissible upon the same amount and kindsof probable cause necessary to justify the issu-ance of a search warrant. 73 There is only onesmall difference. If an officer has probablecause to believe that some evidence of an armedrobbery will turn up in a car (perhaps masks orguns or proceeds), he can stop and search thecar even without probable cause that a particularitem of evidentiary value will be discovered.On the other hand, because of the specificityrequirement of the warrant clause, a searchwarrant cannot issue without probable cause tobelieve that a specifically described item is lo-cated in the place to be searched. 74 Thus, to

"' See People v. Palmer, 26 Ill. 2d 464, 187 N.E.2d236 (1962), cert. denied, 373 U.S. 951 (1963), for anexample of a consent search case in which arguablythe defendant should have urged that despite theconsent to search, the seizure was impermissible forwant of seizure probable cause.

169 People v. Gorsuch, 19 Ill. App. 3d 60, 310N.E.2d 695 (1974).

170 Carroll v. United States, 267 U.S. 132 (1925).171 399 U.S. 42 (1970).172 423 U.S. 67 (1975). See generally text accompa-

nying notes 56-61 supra.173 See text accompanying notes 144-64 supra.174 See text accompanying note 144 supra.

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get prior judicial approval to stop and search acar, an officer would need more data than isnecessary for a warrantless search under theCarroll doctrine.

One probable cause question arising underthe Carroll doctrine is the center of a currentdispute. Over the years many decisions haveassumed that if the police have probable causeto believe that evidence or contraband is some-where in the vehicle, they can search the entirevehicle, including the glove compartment andthe trunk. Recently some defense lawyers haveargued that the requisite search probable causemust relate to the component which is to besearched. 75 For instance, if following a lawfultraffic stop an officer detects the odor of burn-ing marijuana, he may not have probable causeto believe that contraband or other evidence isin the car's trunk. Some courts have acceptedthe argument, holding that the search probablecause must relate to each separate componentwhich is to be searched under the Carroll doc-trine.

176

Litigants can be confused if they forget thatthe Carroll doctrine is not the only theory whichcan apply to automobile searches. If a policeofficer arrests an occupant of a vehicle, underthe doctrine of search incident to arrest, hecan search the area of the vehicle within thearrestee's reach.17 7 In such a case, the law isconcerned with crime probable cause and of-fender probable cause. Search probable causeis wholly irrelevant if the search is incident to alawful arrest and is properly confined withinthe spatial limits prescribed by Chimel. 178

Thus, talk of the "probable cause" require-ment in car searches is utterly meaninglessunless we know what type of probability we aremeasuring. The fourfold probable cause anal-ysis again reminds us of the necessity of keep-ing separate the various fourth amendmentdoctrines, each of which has distinct types ofprobable cause requirements.

175 See, e.g., People v. Gregg, 43 Cal. App. 3d 137,117 Cal. Rptr. 496 (1974); Wimberly v. SuperiorCourt, 16 Cal. 3d 557, 547 P.2d 417, 128 Cal. Rptr.641 (1976); People v. Blixt, 37 Ill. App. 3d 610, 346N.E.2d 31 (1976); People v. Kreichman, 45 App.Div. 2d 697, 357 N.Y.S.2d 82 (1974), rev'd, 37 N.Y.2d693, 339 N.E.2d 182, 376 N.Y.S.2d 497 (1975).

176 Id.177 See, e.g., Application of Kiser, 419 F.2d 1134

(8th Cir. 1969). Compare People v. Hendrix, 25 Ill.App. 3d 339, 323 N.E.2d 505 (1974).

178 Chimel v. California, 395 U.S. 752 (1969).

G. Entries into Homes Without Search Warrants

Several different theories may justify a gov-ernment agent's entry into a home without asearch warranty a9 Sometimes the entry is per-missible to effect an arrest. Sometimes it isnecessary to preserve life or health. In limitedcircumstances, a warrantless entry may beproper to prevent the destruction of criminalevidence. The kinds and the quanta of probabil-ity required vary with the theory which justifiesthe entry. To demonstrate the point, let usexamine the three justifications for entry justdescribed, recognizing that our list is by nomeans exhaustive.

1. Entry to Arrest

An entry into a home to arrest S requiresprobable cause to believe that an offense hasbeen committed (crime probable cause) andthat S has committed it (offender probablecause). The entry itself, with or without anarrest warrant, is a search within the meaningof the fourth amendment.8 0 This suggests asearch probable cause issue. How likely must itbe that the intrusion will bear fruit; that is,that it will result in the arrest of S? Whatprobability must there be that S is within thehome?

Most courts hold that to enter a thirdperson's home to arrest S, the police must havefull probable cause to believe that S is within.""'Contrary to the assumption of many commen-tators, however, some courts have held that tojustify an entry into S's home for purposes ofarresting S, the police need much less than fullprobable cause to believe he is at home. 2

Indeed, Illinois courts have held that unlessthe police know that S is not at home, they canenter to eliminate the home as a hiding placebefore looking elsewhere. sa Other jurisdictionshave required a lesser quantum of search prob-able cause where the police have obtained an

179 See note 29 supra and accompanying text.180 See Dorman v. United States, 435 F.2d 385, 390

(D.C. Cir. 1970); Commonwealth v. Forde, 329 N.E.2d 717, 722 (Mass. 1975). See generally Rotenberg &Tanzer, Searching for the Person to be Seized, 35 OHIOST. L.J. 56 (1974).

181 See, e.g., Lankford v. Gelston, 364 F.2d 197(4th Cir. 1966).

" See Haddad, supra note 36, at 510-14.18 People v. Sprovieri, 43 Ill. 2d 223, 252 N.E.2d

531 (1969); People v. Morales, 48 Ill. 2d 396, 271N.E.2d 33 (1971).

19771

JAMES B. HADDAD

arrest warrant than in cases where they seek tomake a warrantless arrest.18 4 Perhaps a hotpursuit entry would also require less searchprobable cause than a warrantless entry toarrest under non-emergency circumstances. 18 5

Whatever the law of a particular jurisdictionrequires, a fourfold probable cause analysisreminds us to consider whether and to whatdegree the likelihood of success (search proba-ble cause) is a constitutional prerequisite for aparticular type of fourth amendment intrusion.In the entry-to-arrest cases it suggests an issuewhich might otherwise be overlooked.

2. Entry to Preserve Life or Health

When officers enter H's home to preservelife or health, they need not justify their actionsby pointing to data which demonstrate that acrime probably has been committed, that Hprobably is the offender, or that evidence ofthe offense probably is within the home. Crime,offender and search probable cause, as hereto-fore discussed, have no place in analyzing acivil emergency entry. Nevertheless, "civilemergency" is not a talismanic phrase whichmakes unnecessary any calculation of probabil-ities. In determining the reasonableness of anemergency entry, among several factors to beweighed are (1) the probability that an emer-gency exists, and (2) the probability that theentry will do some good. 16 The first concept isdifferent from but analogous to crime probablecause. The second concept is akin to searchprobable cause.

Because emergencies require prompt action,courts may be reticent to engage in a hindsightweighing of the probabilities and to criticizeofficers for acting on too little data. 187 Theymay not demand full probable cause to believethat life or health was imperiled or that anemergency entry would prove helpful. Never-theless courts, no more than counsel, cannotentirely refuse to consider the probabilitieswhich were present at the time of the emer-gency entry.188

184 See Rotenberg & Tanzer, supra note 180, at 57,65.

181 This assumes that non-emergency entries toarrest are constitutionally permissible. See note 37supra.

I8 See People v. Mitchell, 39 N.Y.2d 173, 347N.E.2d 607, cert. denied, 426 U.S. 953 (1976).

187 Wayne v. United States, 318 F.2d 205, 211-12(D.C. Cir. 1963).

"' See People v. Mitchell, 39 N.Y.2d 173, 347N.E.2d 607, cert. denied, 426 U.S. 953 (1976).

3. Entry to Prevent Destruction of EvidenceSome courts have held that police officers,

under limited circumstances, can make war-rantless entries into homes to prevent the de-struction of criminal evidence. 8 9 Obviously, asin a search warrant case, we must be concernedabout the probability that a crime has beencommitted (crime probable cause) and theprobability that evidence related to the crime iswithin the home (search probable cause). Mustthe minimum quantum of probable cause re-quired for such an emergency entry be greaterthan, the same as, or less than the probabilityrequired for the issuance of a search warrant?

One view is that, as in the civil emergencycases, a situation where evidence may be de-stroyed is a now-or-never emergency where wecannot demand from the officer a fine calcula-tion of probabilities. 80 This view would allowemergency action in quest of evidence on lessdata than is required for the issuance of asearch warrant. The contrary view is that awarrantless invasion of a home to obtain crimi-nal evidence should be permitted only wherethere is a near certainty that the evidence iswithin and a very substantial probability that,absent swift police action, the evidence will bedestroyed. Thus, under this view (1) the re-quired quantum of search probable cause isgreater in the warrantless entry case than inwarrant cases; and (2) a separate type of prob-able cause (the probability that the evidencewill otherwise be destroyed) is also required.In most of the cases which permit warrantlessentries to prevent destruction of evidence, thefacts seem to satisfy the more stringent of thetwo views outlined above.' 9'

H. Inventory and Other Administrative Searches

In South Dakota v. Oppermnan,'92 the SupremeCourt held that where police officers havetaken lawful possession of a vehicle, they cansearch the car without a warrant under aninventory search theory. The rationale of thedoctrine-the need to protect the citizen'sproperty and to discourage false claims of po-

1'9 See note 37 supra and accompanying text."' See People v. DiVito, 77 Misc. 2d 463, 353

N.Y.S.2d 990 (1974), which upheld an emergencyintrusion (although not of a house) to seize evidenceupon less than probable cause.

'9' See, e.g., United States v. Guidry, 534 F.2d 1220(6th Cir. 1976); Thomas v. Parett, 524 F.2d 779 (8thCir. 1975); People v. Clark, 547 P.2d 267 (Colo. App.1975).1- 428 U.S. 364 (1976).

[Vol. 68

EXCEPTIONS, SHAM AND PROBABLE CAUSE

lice theft-has nothing to do with efforts todiscover criminal evidence. Thus, it is not sur-prising that search probable cause, as generallyunderstood, need not be present to justify aninventory search. Additionally, where authori-ties have lawfully taken temporary custody of alaw-abiding citizen's property, as for instancethe vehicle of a motorist suddenly taken illwhile driving alone on a highway, neither crimenor offender probable cause is a necessaryprerequisite of an inventory search.193

The inventory search is one type of intrusionamong a broader class of administrative intru-sions which are justified on a rationale that isunrelated to the need to detect crime, to securecriminal evidence or to arrest criminals. Othersinclude searches unlder implied consent regu-latory schemes, shakedowns of prison cells,border searches, antihijacking measures uti-lized at airports, inspections of persons seekingentrance to public buildings, and a variety ofadditional fourth amendment intrusions."Each doctrine has its separate nuances andlimitations, which often vary from jurisdictionto jurisdiction. The common element, for pur-poses of our analysis, is that crime, offenderand search probable cause are unnecessarybecause the rationale of the doctrines is some-thing other than the need to detect crime andto prosecute criminals.

Sometimes the administrative search ration-ale also allows authorities to retain, at leasttemporarily, the citizen's property without ashowing of seizure probable cause. For in-stance, an administrative prohibition againstprisoners' keeping currency in their cell mayjustify removal of currency found in a cell eventhough the inmate's possession violated no

193 See People v. Smith, 44 Ill. 2d 82, 254 NE.2d492 (1969).

I See text accompanying notes 11-27 supra. Insome types of administrative search, the reason forthe search may be the prevention of criminal acts oracts against the public interest: e.g., even in theabsence of a law which prohibits carrying a toy guninto a courthouse or onto a plane, security maydemand that such toys be discovered. In other cases,the purpose is neither to detect nor prevent crime:e.g., inventory search and search for money in thejail cell. Implied consent regulatory schemes mayhave as their justification an intent to safegttardworkers or consumers-even though in many casesdiscovered violations could lead to criminal prosecu-tions. The rationale for these various administrativesearches which justifies a search without probablecause is some (or some additional) purpose otherthan discovery of criminal evidence.

criminal law. On the other hand, in somesituations there is no administrative justificationfor the retention of the property. For instance,if inspection of a woman's purse at a courthouseentrance reveals nothing which could aid aprisoner's escape or pose a danger to thosewithin the building, then the administrativesearch rationale does not permit anything inthe purse to be seized. If, however, the inspec-tion has revealed an item as to which there isseizure probable cause, since the item has beendiscovered in a place where the agent had aright to look, under traditional plain view the-ory the contraband or criminal evidence can beretained.

The fourfold probable cause analysis is prob-ably less useful to the practicing attorney ininventory and other administrative search casesthan elsewhere. The analysis, however, doesbring into focus a theoretical concern whichwas treated in Part II of this article: the anom-aly that, under an individual motivation testfor resolving claims of sham use of administra-tive searches, the more data pointing to searchprobable cause, the more likely is a court toinvalidate an administrative search.19 5

Final Thoughts on Fourfold Probable Cause

The fourfold probable cause analysis couldbe applied to a variety of other doctrines whichauthorize warrantless intrusions. Attention tosuch an analysis may suggest, to both practi-tioner and theoretician, important issues aris-ing under these various doctrines. To ask whattype or types and what quantum of probablecause is necessary to justify any particularfourth amendment intrusion may not lead usto every important fourth amendment issue,but the approach will provide a good beginningand will quickly bring us to some current prob-lems as well as some future areas of controversyin fourth amendment litigation.

CONCLUSION

As indicated at the out.et, my discussions ofthe three topics treated herein have a commonorigin but no real common theme. To Profes-sor Fred E. Inbau, I am gratefill for the oppor-tunity and the encouragement to participate inthe training programs which gave rise to myideas. Whatever else is true, I have learnedthat a thoughtful effort to present fourthamendment law in a practical way demandsserious attention to theory.

"' See text accomnpanying notes 99-101 supra.

19771