Texas Tech Law Review
The fourth amendment to the United States Constitution guarantees freedom from unreasonable searches and seizures. The warrant and probable cause requirements advance this constitutionally implied privacy right. However, with respect to automobile searches, strict adherence to these safeguards has been eschewed in favor of more flexible, and arguably less protective, versions of reasonableness.
In 1981, in Gill v. State, the Texas court addressed the permissible scope of inventory searches, holding that the police may not search the locked trunk of an automobile while conducting an inventory search. Despite the simplicity of the Gill rule, a number of recent cases, while not expressly overruling Gill, significantly expanded the scope of inventory permitted by a fair reading of Gill. These cases mean much more than the expansion of inventory scope, though. They mean that any expectation of privacy is meaningless in this context. Were that expectation replaced by another suitable safeguard, the result might have been less alarming, but, when one measure is removed from the balance without a corresponding adjustment, balancing becomes formalistic; the outcome is predetermined.
Texas law should not uncritically follow this development of fourth amendment jurisprudence. No impediment exists, under either a fourth amendment analysis or an interpretation of the Texas Constitution, to reaffirmation of the balancing undertaken in Gill. Noble motivations cannot and should not protect illogic from criticism. Indeed, illogic undermines the persuasiveness of legal precedent while, at the same time, often imperiling fundamental and well-developed safeguards against improper governmental intrusion. If the United States Supreme Court has indulged the government’s desire to facilitate the finding of criminal evidence at the expense of personal liberty, the court of criminal appeals need not follow, nor set, the example.
Gerald S. Reamey, Michael H. Bassett, & John A. Molchan, The Permissible Scope of Texas Automobile Inventory Searches in the Aftermath of Colorado v. Bertine: A Talisman is Created18 Tex. Tech L. Rev. 1165 (1987).