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John Whitehead's Commentary

Passenger's Privacy Rights Thrown Out The Window By Supreme Court

John Whitehead
The Fourth Amendment's protection against unreasonable searches suffered a near-fatal blow when the Supreme Court ruled recently that the police may search all the personal belongings of a passenger in a car, simply because an officer believes the driver has disobeyed a law.

The case, Wyoming v. Houghton, stemmed from an incident in which Wyoming police stopped a car for speeding. After the driver admitted to using the hypodermic syringe in his pocket for administering drugs, the police searched the vehicle. This search included the purse of passenger Sandra Houghton. After finding drugs in her purse, she was charged and convicted of felony possession. However, recognizing the privacy rights of passengers such as Houghton, the Wyoming Supreme Court threw out the conviction.

In a 6-3 vote, the conservative wing of the United States Supreme Court overturned the lower court's decision and rendered powerless the Fourth Amendment protection against unlawful search and seizure. Justifying this ruling, Justice Antonin Scalia wrote in the majority opinion that the Supreme Court's previous rulings involving car searches have led to a broader police power.

This broader police power, however, infringes on the privacy rights of passengers who are not suspected of wrongdoing but are subjected to warrantless searches merely because the driver was stopped.

For years, police officers have been able to search cars without warrants after stopping a driver, as long as the officer had probably cause to believe the driver had committed a crime. Now, however, the Court is endorsing searches of passengers, without a warrant, although the police have no reasonable cause to believe such passenger committed a crime - except maybe the "crime" of being present in the car. The intrusiveness of such arbitrary searches is precisely what the Fourth Amendment was penned to prevent.

Unfortunately, the right to privacy was not the only constitutional right curtailed in the Court's decision. The First Amendment right to associate freely was also limited by the oppressive ruling which legitimized the age-old adage, "guilt by association."

The Court's decision also contradicted the basic tenet of "innocent until proven guilty." Associating with friends in a car or sharing a ride to work now carries a criminal risk and will undoubtedly result in a wariness each time people ride together in an automobile. As a consequence, will we need to check briefcases and purses or "frisk" a friend or co-worker before riding with them? By allowing the police such unfettered discretion in searching cars and belongings, the Supreme Court's decision will force people to forfeit their rights at the automobile door.

The civil libertarians of the Court, Justices Stevens, Souter and Ginsburg, recognized in their dissent that "instead of adhering to the settled distinction between drivers and passengers, the Court fashions a new rule." This "new rule" strips away any expectation of privacy held by a passenger. As Justice Stevens pointed out, "the rule the Court fashions would apparently permit a warrantless search of a passenger's briefcase if there is probably cause to believe the taxi driver had a syringe somewhere in his vehicle." Although Stevens' example may seem extreme, it is exactly the type of extreme and unbridled police power that this Court's over-reaching ruling endorses.

Ironically, the mortal injury inflicted upon our fundamental rights to privacy and to associate freely was at the hands of a Court whose bound duty is to preserve our rights. If the Court continues to fortify and expand the police powers, at the expense of our constitutional freedom, the result will be the death of our personal liberty.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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