Police authority and governance structures

Atwater v. City of Lago Vista

Supreme Court's decision in Atwater v. City of Lago Vista (Atwater v. City of Lago Vista, 2001) has been highly criticized. Interestingly, the case has been criticized by conservatives and liberals alike. Even for the most ardent law and order advocate, the fact that the Court ratified the authority of the police to jail someone for what was a fine-only offense. The potential for abuse by allowing such process means that the police are now free to arrest and search any person and their vehicle driving on public streets and highways. Atwater represented a further expansion of police authority in regard to traffic stops and essentially has opened the way for police officers to arrest individuals for very minor offenses in order to open the door for investigating more serious crimes for which they would otherwise not have authority to arrest. The potential for abuse should be obvious in that nearly every time any given driver takes to the road some minor traffic law is violated. Given the broad powers afforded the police in Atwater any targeted offender who the police are anxious to arrest is now easily apprehended and detained regardless of the minor nature of his alleged offense. In essence, the Atwater decision has removed the element of probable cause from the arrest and detention process at least as it pertains to vehicle stops.

In light of the profound possibility for abuse following the Supreme Court's decision in Atwater, it is difficult to understand how the Court could have considered such procedure to "reasonable" as required by the Fourth Amendment. As argued in the strong dissent presented Justice O'Connor, the majority's decision in Atwater was a "pointless indignity' that served no discernible state interest (Atwater: p.360.)." In the final analysis, Atwater is bad case law that has expanded police authority beyond the limits of fairness and represents an infringement on the Fourth Amendment rights of every American citizen.

2. Consensual Search

Traditionally, valid consent for a legal search can only be granted by the person being searched but over the years the right of a third person to consent to a search of common authority or possession has been expanded. The issue of whether or not a third person has the authority to grant consent is dependent on whether or not said third person has sufficient legal authority over the place or thing that the investigating authority is seeking to search, whether such person has "common authority."

Common authority is not an easily defined term and the courts have struggled to define it. The U.S. .Supreme Court in United States v. Matlock (U.S.V. Matlock, 1974) described common authority as the right to joint access or control. This authority is limited in scope, however, to general areas and does not extend to every discrete enclosed area with said general area. The courts have, through a series of cases, defined how far this common authority reaches. For instance, although a spouse may consent to the search of the family computer such search does not include private files that require a separate password.