Tossings and Traffic

A Washington, D.C., black man with a narcotics record was stopped in his car by police, and he showed a driver's permit that the officer knew to be invalid. The man was arrested, then thoroughly searched. Because the police found 14 caps of heroin, the man was convicted of a narcotics felony. A Florida college student was pulled over at 2 a.m. after police saw his car weaving. When he said he had left his license in his dorm, he, too, was arrested, then fully searched and finally convicted for possession of marijuana joints found in a cigarette box in his coat.

Conceding that the initial arrests were legal, lawyers for both defendants asked the Supreme Court to decide whether the searches were constitutional. Last week the Burger court answered yes in a decisive 6-to-3 vote, thereby adding another stiff bristle to its law-and-order reputation.

If there is probable cause to take a person into custody, said Justice William Rehnquist for the majority, "the fact of lawful arrest establishes the authority to search." That has always been true for people charged with serious crimes; this time the court was refusing to make a distinction or to call for less intrusive treatment even though a traffic offense was the only reason for the arrest. The minority of Thurgood Marshall, William Brennan and William Douglas thought that such distinctions were precisely what judges should consider in trying to decide whether a search was reasonable as required by the Fourth Amendment.

The dissenters were also worried about "the possibility that a police officer ... will use a traffic arrest as a pretext to conduct a search." In fact, some do already; if they "toss" the suspect and find nothing, they may not even bother with the traffic arrest. Last week's decision makes clear that future legal attacks on traffic-arrest searches will focus on whether the arrest was called for in the first place.

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