2 8 3sl i p p e r y sl o p e sperson’s home without a search warrant. In the case of California v. Carney,^1
the U.S. Supreme Court had to rule on whether the police needed a war-
rant to search for marijuana in an “oversized van, fully mobile,” parked in
a downtown parking lot in San Diego. Because the van was a fully mobile
vehicle, it seemed to fall under the first principle; but because it also served
as its owner’s home, it seemed to fall under the second. The difficulty, as the
Court saw, was that there is a gray area between those things that clearly are
motor vehicles and not homes (for example, motorcycles) and those things
that clearly are homes and not motor vehicles (for example, apartments).
Chief Justice Warren Burger wondered about a mobile home in a trailer
park hooked up to utility lines with its wheels removed. Justice Sandra Day
O’Connor asked whether a tent, because it is highly mobile, could also be
searched without a warrant. As the discussion continued, houseboats (with
or without motors or oars), covered wagons, and finally a house being
moved from one place to another on a trailer truck came under examination.
In the end, our highest court decided that the van in question was a vehicle
and could be searched without first obtaining a warrant to do so. The court
did not fully explain why it is fair to allow warrantless searches—and to
send people to jail as a result—in cases of vans used as homes but not in
other very similar cases.
Questions about where to draw a line often have even more important im-
plications than warrantless searches. Consider the death penalty. Most socie-
ties have reserved the death penalty for those crimes they consider the most
serious. But where should we draw the line between crimes punishable by
death and crimes not punishable by death? Should the death penalty be given
to murderers of prison guards? To rapists? To drug dealers? To drunk drivers
who cause death? Wherever we draw the line, it seems to be an unavoidable
consequence of the death penalty that similar cases will be treated in radi-
cally different ways. A defender of the death penalty can argue that it is not
unfair to draw a line because, once the line is drawn, the public will have fair
warning about which crimes are subject to the death penalty and which are
not. It will then be up to each person to decide whether to risk his or her life
by crossing this line. It remains a matter of debate, however, whether the law
can be administered in a predictable way that makes this argument plausible.
The finality of death raises a profoundly difficult problem in another area
too: the legalization of abortion. There are some people who think abortion
is never justified and ought to be declared totally illegal. There are others
who think abortion does not need any justification at all and should be com-
pletely legalized. Between these extremes, there are many people who be-
lieve abortion is justified in certain circumstances but not in others (such as
when abortion is the only way to save the life of the mother but not when
it prevents only lesser harms to the mother). There are also those who think
abortion should be allowed for a certain number of months of pregnancy,
but not thereafter. People holding these middle positions face the problem
of deciding where to draw a line, and this makes them subject to criticisms
from holders of either extreme position.97364_ch13_ptg01_273-290.indd 283 15/11/13 11:01 AM
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