The Boundaries of Privacy

A court O.K. for police searches of factories and fields

The Fourth Amendment bars "unreasonable searches and seizures" by Government agents. But where exactly should the line be drawn? Is it "unreasonable" when 15 to 25 armed agents of the U.S. Immigration and Naturalization Service descend on a factory without warning, seal off the exits and systematically interrogate employees? Or when police ignore fences and no-trespassing signs to search private land for marijuana plants without a warrant? In recent years the Supreme Court has appeared to push the boundaries in the direction of the Government, and last week, in cases involving factory searches and open fields, it did so again.

The immigration case was brought by four Los Angeles-area garment-factory workers who were questioned but not arrested in INS raids in 1977. By a 7-to-2 vote, the court upheld the constitutionality of the INS interviews. Writing for the majority, William Rehnquist noted that individuals who are not under arrest have the right to ignore and walk away from police who want to question them. That being so, Rehnquist continued, the factory workers "could have had no reasonable fear that they would be detained" if they refused to answer the questions of the INS agents or chose to leave the factory while the raids were going on. William Brennan, joined by Thurgood Marshall, wrote in dissent that the decision had a "studied air of unreality," since the INS raids were "of sufficient size and force to overbear the will of any reasonable person."

In the marijuana cases, the high court relied primarily on a 60-year-old decision by Oliver Wendell Holmes that involved a South Carolina moonshiner who dumped illegal liquor in a field near his home. Holding that revenue officers could testify about the liquor, Holmes said that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects' is not extended to the open fields," even when the land is the suspect's own property. The Burger court, by a 6-to-3 vote, found that the same principle applied in two cases from Maine and Kentucky, though the crops of marijuana confiscated as evidence were in fenced-off areas posted with no-trespassing signs. In upholding the warrantless searches, Justice Lewis Powell found that the landowners had "no reasonable expectation of privacy" because "open fields do not provide the setting for those intimate activities that the amendment is intended to shelter from Government interference or surveillance."

Some constitutional scholars fear that the high court decisions give the police too much leeway to conduct searches. Law-enforcement officials, however, embraced the rulings gratefully. The INS considers factory raids its best method for finding illegal aliens inside the country and had limited such operations pending the court's action. Local police were most pleased by the open-fields decision. "Without this ruling, it would be almost impossible to continue our enforcement effort," said Captain Louis Stiles, commander of the Kentucky state police narcotics unit. His state is one of many in which "home-grown" marijuana has become a major cash crop. Some law-enforcement authorities believe that the Supreme Court decisions not only allow police to search fields on foot without a warrant, but give implied endorsement to the widespread use of helicopters and air planes that fly over remote rural areas in search of the illegal weed.