Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth Amendment

93 Pages Posted: 6 Oct 2010 Last revised: 16 Jan 2011

See all articles by Cynthia Lee

Cynthia Lee

George Washington University Law School

Date Written: January 13, 2011


In the 1970s, the Court announced in a series of cases that police officers with probable cause to believe contraband or evidence of a crime is within a container must obtain a warrant from a neutral, detached judicial officer before searching that container. In requiring a search warrant, the Container Doctrine put portable containers on an almost equal footing with houses, which enjoy unquestioned Fourth Amendment protection.

This Article demonstrates that the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued by a judicial officer. Studying the numerous ways in which the Court has undermined the Container Doctrine is useful for several reasons. First, the erosion of the Container Doctrine is emblematic of a more tectonic jurisprudential shift - the Court’s movement away from the Warrant Preference view (the belief that the Fourth Amendment expresses a preference for warrants) and its gradual embrace of the Separate Clauses (or Reasonableness) view of the Fourth Amendment. Second, the Court’s willingness to allow a growing number of container searches without warrants suggests a deep judicial ambivalence about the effectiveness of warrant formalism. Third, the demise of the Container Doctrine, and its corresponding impact on the poor and homeless, reflects a troubling indifference to non-majoritarian interests.

This Article proceeds in four parts. Part II examines the longstanding debate over whether the Fourth Amendment expresses a preference for warrants or merely requires that searches and seizures not be unreasonable. Part III provides background on the Container Doctrine and discusses its rationales. Part IV examines the myriad ways in which police can lawfully search a container without a warrant. The Court’s increasing willingness to tolerate warrantless searches of containers mirrors its gradual embrace of the Separate Clauses or Reasonableness view of the Fourth Amendment, the position that all the Fourth Amendment requires is that searches and seizures be reasonable. Part V provides a discussion of why this movement away from warrants towards reasonableness in the container search context is problematic and what might be done about the situation. This Article argues that not requiring warrants for most container searches hurts the poor and, by implication, poor communities of color, more so than the wealthy. To rectify this unfairness, this Article proposes an additional layer of review in container search cases where the government claims the warrantless search falls within an exception to the warrant requirement. Borrowing from a small slice of the Court’s equal protection jurisprudence, its “rational basis with bite” cases, this Article proposes that courts be non-deferential and rigorous when engaging in reasonableness review. In other words, reviewing courts should employ reasonableness review “with teeth.”

Keywords: Fourth Amendment, Searches and Seizures, Container Searches, Computer Searches, Reasonableness Review, Warrant Preference, Rational Basis with Bite, Automobile Exception, Search Incident to Arrest, Terry Stop and Frisk, Urban Poor, Poor People of Color, Warrants, Critical Race Theory, Feminist

Suggested Citation

Lee, Cynthia, Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth Amendment (January 13, 2011). Journal of Criminal Law and Criminology, Forthcoming, GWU Legal Studies Research Paper No. 514, GWU Law School Public Law Research Paper No. 514, Available at SSRN:

Cynthia Lee (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
(202) 994-4768 (Phone)

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