HIGH COURT RULING GOES A LITTLE FAR IN APPROVING WARRANTLESS CAR SEARCHES

Now let's see, if you are pulled over by a highway patrolman for
speeding, he has no automatic authority to search you or your car. But
if he sees something potentially illegal in the car, he can look
through it without a warrant.

Or if he smells liquor on your breath and you seem intoxicated, he can
proceed with a warrantless search of you and your car. Or if the car
reeks of marijuana smoke, he has that power.

And now, even if you are simply a passenger in the car, the officer
can, if he thinks the driver has committed a transgression more
serious than a traffic violation, search your bags. Still, unless he
expects you personally of wrongdoing, he can't search your person
without a warrant.

For many years, the U.S. Supreme Court found ``troubling'' these
issues arising from car searches. That's because there exists an
inevitable tension between protecting an individual's privacy
interests and ensuring the public's interest in effective law
enforcement. Most of the court's search and seizure cases reflect an
attempt to balance those concerns. In the past 20 years, however, the
interests of police have usually come out on top.

LAST WEEK, IN a decision that continues a worrisome trend of giving
police greater authority to conduct warrantless searches of motorists
and their cars, the court gave officers the authority to search an
automobile passenger's belongings if the officers suspect the driver
has done something wrong.

Outraged defense lawyers, noting that the decision could affect
millions of people, said the court is creating a police state, while
pleased police organizations celebrated an extension of the law that
gives them more latitude to do their jobs.

Based on the past two decades, the ruling is hardly surprising. It
clarifies a 17-year-old decision in which the high court declared an
officer could search every part of a car and its contents if the
officer, after a lawful stop, has probable cause to believe he will
find illegal contraband, such as drugs.

The 1982 decision in U.S. vs. Ross, however, said nothing about the
ownership of packages subject to a warrantless search. Last week, in
Wyoming vs. Houghton, the court did, and now we know ownership does
not matter.

The Fourth Amendment to the Constitution prohibits unreasonable
searches and seizures, which means, obviously, that a reasonable
search is not unconstitutional. A reasonable search is generally a
search made subject to a warrant issued by a judge. But not always. In
1925 the court first carved out an ``automobile exception'' to this
general rule.

In that year, the court upheld the convictions of two bootleggers who
were transporting liquor in violation of the National Prohibition Act.
Federal prohibition agents had evidence that two men frequently
traveled a Michigan highway in an Oldsmobile Roadster. The agents
encountered the car and stopped it.

The agents didn't see any liquor but proceeded to search the car even
though they had no warrant. One agent struck at the back of a seat,
which was harder than normal. He tore open the seat cushion and found
68 bottles of gin and whiskey. The men were arrested and convicted.

The court found that the search was necessary given that the police
had a tip and the automobile was in transit. The justices emphasized,
however, the importance of an officer having probable cause to believe
the car contained contraband. Probable cause meant that a judge would
have agreed based on the facts that the search was justified.

The court examined the history of warrantless searches, noting that
Congress in the past had by law allowed such searches of vessels,
wagons and carriages - moveable entities that could quickly be put out
of reach of a search warrant.

It would be years, however, before the court defined the scope of this
``automobile exception.'' It refused to extend it to mere containers
thought to be transporting contraband. For example, it found illegal
the search of a suspicious footlocker thought to be stuffed with
marijuana. When the footlocker arrived in Massachusetts from
California, the police did not seize it. They waited until someone
picked it up, put it in the trunk of a car and drove off.
Subsequently, the police stopped the car, opened the trunk and without
a warrant searched the footlocker. It contained marijuana. In that
case, the court said, police had a chance to obtain a warrant and did
not.

Similarly, the court in 1981 reversed the conviction of a man who,
when pulled over, reeked of marijuana. A warrantless search of the
trunk of his car revealed two wrapped packages. Without obtaining a
warrant the police opened the packages and found drugs. The search,
the court said, was not constitutional.

But a year later, in 1982, the court finally defined the scope of the
automobile exception, ruling that the search of a lawfully stopped car
could include every part of the car and its contents that might
conceal the object of the search. That means officers can extensively
inspect a driver's car and its compartments without a warrant so long
as they have probable cause to think the driver had committed a crime.
Until last week, however, the court had not said searching the
belongings of a passenger suspected of no wrongdoing is
permissible.

The case began when a man was stopped in Wyoming because of a faulty
brake light. The officer noticed a hypodermic needle in the man's
shirt and the man admitted using it to take drugs. The officer then
searched the car for contraband and picked up the purse of one of the
passengers. It contained drugs and drug paraphernalia.

THE WOMAN WAS convicted of drug possession and appealed, saying the
search of her purse violated her Fourth Amendment rights. Justice
Antonin Scalia disagreed, saying the court's past cases allowing the
search of cars would also allow the search of containers in the car,
no matter who the containers belong to. Otherwise, he said, criminals
would be tempted to hide contraband in those containers.

Scalia said a citizen's privacy interest in a car must give way to an
officer's interest in preventing crime. But we question the wisdom of
granting the police so much discretion in making the decision to
search without a warrant. Even if the search was later found to be
illegal, the assault on privacy has been committed and is not defensible.

We know one thing for sure. In this confusing area of law, in which
the application of a search will depend on the conscience and skill of
the officer who makes the stop, passengers would do well to make sure
they know their fellow travelers.