Scalia Joins Liberal Faction in Limiting Police Searches

WASHINGTON — With Justice Antonin Scalia writing for its liberal faction, the Supreme Court ruled Tuesday that a police officer needs “probable cause” to believe that an item has been stolen before he can thoroughly examine it.

Scalia refused to give the police additional leeway in searching an apartment, saying that officers could not proceed simply because they were already there in an emergency and because an expensive item appeared out of place in a “squalid and otherwise ill-appointed” room.

“We choose to adhere to the textual and traditional standard of probable cause,” Scalia wrote, conceding that in this case and others a guilty person may go free because of the restraint on police. “But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few . . . to protect the privacy of us all.”

Independently Minded

Scalia, who was widely described as a conservative before joining the high court in October, has already shown himself to be far more independently minded than expected. In January, for example, he joined the liberal majority to uphold a California law giving pregnant women a disability leave and guaranteeing that their jobs be held until they return.

The court’s conservative members--Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Lewis F. Powell Jr.--dissented from Scalia’s opinion Tuesday, saying that it “could deter conscientious police officers from lawfully obtaining evidence necessary to convict guilty persons.”

The case arose when Phoenix police were called to an apartment after a bullet had been fired into a room below. They found three guns and a ski mask. One officer, also seeing an expensive stereo and suspecting that it was stolen, picked it up to examine its identification number. A call to headquarters confirmed that it was stolen.

‘A Reasonable Suspicion’

However, courts in Arizona threw out the evidence of the stolen stereo because police did not have a search warrant to examine it. State attorneys appealed to the high court, contending that the check of the identification number was not a “search” covered by the Constitution. Moreover, they argued, the officers had reason to be in the apartment and, therefore, needed only a reasonable suspicion--not “probable cause”--to proceed.

On the first point, Scalia quickly disagreed: “A search is a search, even it happens to disclose nothing but the bottom of a turntable.” However, he rejected the second argument because it requires creating a new category, such as “cursory inspections,” distinct from a search.

“We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a plain-view inspection nor yet a ‘full-blown search,’ ” he wrote in Arizona vs. Hicks, 85-1027.

In other actions, the court:

--Ruled that police may search a barn without a warrant (U.S vs. Dunn, 85-998). Previously, the court had said that officers can search open fields but not a house or yard. On a 7-2 vote, the justices said that a barn “is not within the protected curtilage of the house for Fourth Amendment purposes.”

--Heard arguments in the appeal of the Los Angeles airport authority, which is urging the court to reinstate its ban on soliciting within the building. But the justices were skeptical in their questioning about the case (Los Angeles Airport vs. Jews for Jesus, 86-104), suggesting that the policy resolution was broadly drafted but inconsistently enforced.