UNLESS IT'S IN YOUR POCKET

The Supreme Court on Monday chipped away a little further at the 4th
Amendment's protections against searches. It held that the property of
automobile passengers is subject to warrantless police searches when
the driver of the car is suspected of wrongdoing -- as long as the
property does not happen to be in the passenger's pocket.

If this sounds a little strange, it is a part of the Supreme Court's
increasingly arbitrary line-drawing concerning the privacy protections
of the 4th Amendment.

The case involved a woman named Sandra Houghton, who was riding in a
car in Wyoming that was pulled over for speeding. When a highway
patrolman saw a syringe in the driver's front pocket, the car --
including Ms. Houghton's purse -- was searched, and Ms. Houghton was
later prosecuted for possession of the drugs that were found in her
purse.

Justice Antonin Scalia's opinion for the court's six-member majority
seems, at first glance, to define a sensible principle: "When there is
probable cause to search for contraband in a car, it is reasonable for
police officers . . . to examine packages and containers without a
showing of individualized probable cause for each one. A passenger's
personal belongings, just like the driver's belongings . . . are 'in'
the car."

But the court's new rule allows police to search the property of
people not suspected of any wrongdoing based on mere suspicions about
others.

Ms. Houghton, of course, turned out to be carrying methamphetamine,
but under the court's decision, the privacy rights of all passengers
are made ancillary to those of the driver.

If a police officer suspects a driver of wrongdoing, in other words,
all possessions of all the occupants of the car become subject to search.

Unless, that is, they happen to be physically on the person of the
passenger.

Justice Scalia goes to some lengths to distinguish this case from an
earlier one, in which the court had held that probable cause to search
a car did not justify "searches of the passenger's pockets and the
space between his shirt and underwear." This, Justice Scalia contends,
is far more intrusive than a mere search of a container like a purse,
and that is true as far as it goes. But the distinction between a
passenger's privacy interest in the property he wears and the property
he carries seems minimal compared with that same passenger's privacy
interest in not being searched at all without probable cause that he
committed a crime.

The court's three dissenting justices would require some
particularized suspicion about each person whose property is searched.

And such a holding could present a significant practical problem for
law enforcement. How would a policeman know which purse or briefcase
belongs to which of a car's occupants, and hence, which he could or
could not search? "Certainly, the ostensible clarity of the Court's
rule is attractive," Justice John Paul Stevens wrote in dissent. "But
that virtue is insufficient justification for its adoption."