Florida v. Wells/Concurrence Stevens

Justice STEVENS, concurring in the judgment.

While I agree with Justice BLACKMUN's opinion, I think additional criticism of the Court's activism is appropriate. One must wonder why this case merited a grant of certiorari. The judgment of the Florida Supreme Court was obviously correct. Its opinion contained a minor flaw, as countless opinions do. Unless we are to become self-appointed editors of state-court opinions in the criminal law area, that is surely an insufficient reason for exercising our certiorari jurisdiction.

The flaw, of course, might impose a stricter standard for the conduct of inventory searches in Florida than the Federal Constitution actually requires, but there is no suggestion that the extra layer of protection provided to Florida citizens by the Florida Supreme Court will hamper law enforcement in that State. Apparently the mere possibility of a minor burden on law enforcement interests is enough to generate corrective action by this Court.

But then, as Justice BLACKMUN properly observes, the Court does not content itself with commenting on the flaw in the Florida Supreme Court's opinion. Instead, it plunges ahead with a flawed opinion of its own. While purportedly reaffirming the requirement of "standard criteria" to control police discretion in conducting inventory searches, see Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987), the Court invites the State to allow their officers discretion to open-or not to open "closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors." Ante, at 4. Thus, luggage, briefcases, handbags, brown paper bags, violin cases-indeed, virtually all containers except goldfish bowls-could be opened at the whim of the officer, whether locked or unlocked. What is left for the "standard criteria"? It is a proper part of the judicial function to make law as a necessary by-product of the process of deciding actual cases and controversies. But to reach out so blatantly and unnecessarily to make new law in a case of this kind is unabashed judicial activism.