The modern law concerning whether police need a search warrant or arrest warrant to search or arrest people in public places begins with the 1967 case of McCray v. Illinois (Franklin, 1991).
When a reliable informant told the police that George McCray had been selling drugs and that he had drugs in his possession, the police found McCray and searched him. After finding heroin in his pocket, they arrested him for possession of an illegal drug. The police did not obtain a search warrant before finding and searching George McCray. Justice Stewart, writing for the majority in this five-to-four decision, stated that in general police do not need a search warrant to search people in a public place, but they do need probable cause. In proving probable cause, however, the police do not have to reveal the name of their informant. (Franklin, 1991) George McCray’s conviction for possession of an illegal drug was upheld.
Justice Douglas argued that police should be required to obtain a search warrant in most cases before they can search people in public places, with exceptions for emergency situations, such as where a crime is committed in the presence of a police officer. (Franklin, 1991) The police also should have to produce their informant in Court, he believed, so the attorney for the accused could cross-examine him or her. The majority of justices thought that requiring a search warrant every time police wished to search someone in a public place would make law enforcement almost impossible. In their opinion, requiring police to have probable cause before making a search provided enough protection for the people being searched. The majority also accepted the argument that if the identities of informants were revealed there would be no more informants and law enforcement would become much more difficult.
In 1973 the Court decided the case of Cupp v. Murphy. Justice Stewart wrote the opinion for the majority. Police brought Daniel Murphy to the police station for questioning after they found his wife dead. While the police did not know whether or not Daniel Murphy had killed his wife, they knew she had been strangled and there were scratch marks on her throat. Without a search warrant, the police took samples from under Murphy’s fingernails. (Franklin, 1991)
The Court ruled that this search and seizure was reasonable under the circumstances. The police knew that if they did not act fast the evidence would be destroyed, so there was no time to obtain a search warrant. The police did have probable cause at the time to believe Murphy had killed his wife. The material under his fingernails turned out to be the skin and blood of Mrs. Murphy, and Daniel Murphy’s conviction for her murder was upheld.
In another case, United States v. Robinson, Officer Richard Jenks, of the District of Columbia police force, pulled Willie Robinson’s Cadillac over because Jenks had reason to believe Robinson’s driver’s license had expired. Jenks then arrested Robinson for driving without a valid driver’s license, searched him, and found heroin in his possession, which led to Robinson’s conviction for possession of an illegal drug. (Franklin, 1991)
Justice Rehnquist, who wrote the opinion for the Court, searched through ancient legal treatises for information about ancient English common law rules regarding when police may search people under similar circumstances, but he found little helpful information. Justice Rehnquist then traced the history of U.S. search and seizure law from the 1914 decision in Weeks to 1973 and also found little that would help to decide this particular case. (Franklin, 1991) May police search people when they arrest them? Justice Rehnquist and the majority thought that this should be allowed.
Justice Powell wrote a concurring opinion, in which he argued that once people are under arrest they do not have the same expectation of privacy as other people. In his opinion, it would only “frustrate law enforcement” to develop a set of complex rules to deal with this question. (Franklin, 1991) Willie Robinson’s conviction would not be overturned. The three justices, Douglas, Brennan, and Marshall, argued that a full search did not seem justified in this case because Robinson was being arrested for a minor traffic offense.
Justice Marshall, in his dissenting opinion, suggested that in determining whether searches are justified in particular cases, the Court should rely on a case-by-case analysis, taking into consideration all the circumstances. (Franklin, 1991) The majority of justices did not want to get into the business of trying to draw the line between minor and major offenses. They also did not think a case-by-case approach would work in this area, because such an approach seemed like the road to more confusion for both the judges and the police. Instead, the Court ruled that whenever the police arrest someone they may search that person without a warrant.
In 1976 the Court finally decided whether an arrest warrant is required when someone is arrested in a public place. While the Court had ruled that an arrest warrant is usually required to arrest someone in a private place, such as a home or private office, did the same rule apply in a public place? Although this question seems so basic, before 1976 the Court had never been called upon to answer it. (Franklin, 1991) In United States v. Watson, a postal inspector received a telephone tip from an informant who claimed that Henry Watson was in possession of credit cards that had been stolen out of the mail. Postal inspectors then arrested Watson in a restaurant without first obtaining an arrest warrant.
Justice White pointed out that under the ancient English common law rules an arrest warrant was not required before someone could be arrested in a public place. The Fourth Amendment requires the police to be “reasonable,” and it appeared, given this history, that it was not unreasonable to allow arrests to be made in public places without arrest warrants. Justices Marshall and Brennan dissented, arguing that an arrest warrant should be required in most cases, with exceptions for a variety of situations. In 1976 the majority did not want to make a general arrest warrant requirement and then spend decades figuring out what the exceptions to that general requirement should be. That approach would probably confuse everyone involved, including those whose rights are protected by the Fourth Amendment.
Franklin Paula A. The Fourth Amendment. Morristown, NJ: Silver Burdett Press, 1991.
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