RULING BROADENS POLICE AUTHORITY

There is a classic hypothetical that law professors often use in their
criminal procedure classes.

It involves police coming upon a sealed room from which there is only one
source of entry or exit. When the police enter the room, they find a dead
body and two or more individuals standing nearby. If no one provides police
with information, or if they all accuse each other, what can the police do?

In a sense, the Supreme Court addressed a somewhat similar situation in its
recent decision in Maryland v. Pringle. There a police officer who found
$763 in the glove compartment of a car as well as drugs in the back-seat
armrest was held to be entitled to arrest all three occupants of the car
without violating the Fourth Amendment. The court's decision was unanimous,
indicating its sympathy for the police officer's dilemma. Coincidentally,
its answer was similar to the answer law students usually give in response
to the sealed room hypothetical.

For the Supreme Court, the question presented in the Pringle case was simply
whether the Fourth Amendment probable cause standard was satisfied when all
three occupants of the car were arrested based on what the officer
discovered. However, as is often the case, the devil lies in the details.

One of the details is the fact that the decision reads like an open
invitation to police to engage in mass arrest activity. The court emphasized
that the probable cause standard is not reducible to a neat set of rules.
The court called it a "practical, nontechnical conception" and a "fluid
concept." Why not, therefore, view everyone at or near the scene of a crime
as a legitimate suspect eligible for arrest?

The location of the arrest in Pringle was a car. Would it make a difference
if the location had been a private home? What about patrons at a rock
concert who happen to be near someone who is smoking marijuana? What if
Pringle had been in a van with nine persons, or a bus that had only five
passengers?

While the court mentioned that mere proximity to someone suspected of
criminal activity does not give rise to probable cause to conduct a search,
there was not much more than that present in Pringle to justify his arrest.
Nor did the court give any consideration to authorizing a lesser intrusion,
such as a temporary detention for further investigation, rather than a full
scale arrest.

In a series of decisions, the Supreme Court has placed vehicles in a special
category for Fourth Amendment purposes. They can be inventoried and searched
in circumstances that would not be applicable elsewhere.

But the emphasis in Pringle was more on the practical judgment made by the
police officer than the specific setting in which the arrest took place.
There is no guarantee that the decision will be limited to a private car
containing three or fewer occupants.

How lower courts apply the ruling remains to be seen, but in the meantime
the best advice is to be very careful whom you drive with, whom you visit
and whom you stand near.

Mark Berger is the Oliver H. Dean Peer professor of law at the University of
Missouri-Kansas City Law School. He lives in Overland Park.