Arkansas v. Sanders

PETITIONER:Arkansas
RESPONDENT:Sanders
LOCATION:Collision between Mr. Montrym’s car and motorcycle

DOCKET NO.: 77-1497
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Arkansas Supreme Court

CITATION: 442 US 753 (1979)
ARGUED: Feb 27, 1979
DECIDED: Jun 20, 1979

ADVOCATES:
Jack T. Lassiter – By appointment of the Court, argued the cause for the respondent
Joseph H. Purvis – Argued the cause for the petitioner pro hac vice

Facts of the case

Local police in Little Rock, Arkansas received a tip that an individual would be arriving at the airport with a suitcase containing a significant quantity of marijuana. Upon arriving, the suspect retrieved his suitcase and left in a taxi. The police officers pursued and stopped the taxi, and ordered the driver to open the trunk which revealed the suitcase in question. The police opened the suitcase without obtaining permission from its owner and found nearly ten pounds of marijuana.

Question

Did the warrantless search of the suitcase by the police violate the Fourth and Fourteenth Amendments which prohibit unreasonable searches?

Warren E. Burger:

We’ll hear arguments next in Arkansas against Sanders.

Mr. Purvis, I think you may proceed whenever you’re ready.

Joseph H. Purvis:

Thank you.

Mr. Chief Justice and may it please the Court.

I would like to reserve approximately 10 minutes of my time, if I might, at the end for rebuttal.

The issue here before this Court is whether this Court is going to extend its holding in United States versus Chadwick so as to prevent law officers who are in the process of conducting a valid automobile exception search from searching luggage which is found within the vehicle.

Now, it appears to me that, from the facts here, there are — there is no question but that what we have here is an automobile search.

Digressing a little bit, this Court has held in Carol, in Chadwick, and in other cases that it will recognize an exemption to the Fourth Amendment Warrant Clause where there is probable cause to believe a vehicle contains contraband and it is coupled or the situation is coupled with exigent circumstances.

Now —

Warren E. Burger:

What are the exigent circumstances here that distinguish it from Chadwick?

You’ll tell us about that?

Joseph H. Purvis:

Mr. Justice, I think we’re clearly talking apples and oranges and I think, in Chadwick, this Court made it extremely plain, mentioning several times, that it did not deal with nor was it confronted with an automobile exception search.

The automobile exception in Chadwick was not raised in the Court of Appeal, nor was it brought before this Court.

What you had there was a situation where the officers had made the arrest and had seized a 200-pound double-lock footlocker which was about to be placed into the trunk of a parked car with its engine not running with the trunk open.

But, the search did not take place there.

It was after the officers reduced both the defendant and the footlocker to their exclusive control and took both to the federal building in Boston where they kept them for an hour-and-a half before doing the search that led this Court, I believe, to say, in no stretch of the imagination, “can we see exigent circumstances?”

Here, on the other hand, we are faced with a search — we are faced, first of all, with a defendant and a confederate whose existence the officers did not know until they saw him meet up at the baggage area of the airport.

These individuals leave the baggage area of the Little Rock Airport, which incidentally is immediately adjacent to the door where the cabs are.

They im — leave the baggage area.

They climb into a taxicab which is moving down one of the busiest there affairs in town, away from the airport at 5:00 in rush hour traffic on Friday afternoon after the Courts have closed for the weekend to some point unknown.

John Paul Stevens:

General Purvis, if I understand your theory correctly, in Chadwick you would say the automobile exception would’ve applied if the agents have waited a few moments until they put the footlocker into the trunk of the car and then started the motor.

Is that right?

Joseph H. Purvis:

I think it possibly would’ve, but I think, certainly, when you are speaking of a 200-pound double lock footlocker —

John Paul Stevens:

Well, it still would’ve fit in the trunk, I think.

Joseph H. Purvis:

Yes, sir.

John Paul Stevens:

And if they’d started the motor, it’d be precisely like this car.

And in your example about this case, the car wasn’t moving when they got in.

The taxi wasn’t moving when they put the suitcase into the taxi, was it?

Joseph H. Purvis:

What you had, Mr. Justice —

John Paul Stevens:

But, is this a question of a different point in time when the officers chose to make the search, isn’t that the only difference?

Joseph H. Purvis:

No, s —

John Paul Stevens:

They could’ve — presumably, they knew about the description of the luggage when they put it in the trunk here.

If they had grabbed it right before they put it in the trunk, then it’d be exactly like Chadwick, wouldn’t it?

Joseph H. Purvis:

I don’t think that the of — there was any way, Mr. Justice Stevens, that the officers here really could have made the search and seizure at that time because of the particular facts of this situation.

Number one, they knew about Mr. Sanders.

It was almost a draper-like fact situation corroboration of an informant’s tip.

John Paul Stevens:

Yes.

Joseph H. Purvis:

Alright, there was no corroboration — no full corroboration until he picked up the suitcase.

John Paul Stevens:

Yes, but then there was.

Joseph H. Purvis:

But, Mr. Sanders then meets up with a confederate.

The officers did not have any information on him.

Suddenly, the rise, I think the natural inference is, well, we may be dealing with a ring here, a conspiracy, certainly more than warrant.

Alright, Mr. Sanders, very coolly then, goes out and gets into the taxicab while Mr. Rambo, the co-defendant, stands there as the lookout for any officers that might move in, then picks the suitcase up and away they go.

Now, also —

John Paul Stevens:

Well, when he picked the suitcase up, they could’ve seized it right then, couldn’t they?

Joseph H. Purvis:

You’re also dealing with a situation where the officer —

John Paul Stevens:

Couldn’t they?

Joseph H. Purvis:

Were physically —

John Paul Stevens:

Could they not have picked and seized the suitcase when he picked it up, right at the moment you just described?

Joseph H. Purvis:

I think, also, the officers were far enough away physically that they cou — they probably could not have gotten to it.

Mr. Sanders would’ve driven away in the taxicab had the officers moved in, and there’s also the possibility that the officers could not have gotten to Mr. Rambo before he got into the taxicab.

There is also the possibility that he might have had a weapon.

And, in an airport, gunplay could’ve ensued.

William H. Rehnquist:

Well, Mr. Purvis, these facts you’ve described, so far, make this sound like a much more — kind of a fluid situations and not really the classical automobile search exception when we knew you’ve got a taxi.

Joseph H. Purvis:

Mr. Justice Rehnquist, I don’t think the fact that it is a taxicab as opposed to an individual’s private vehicle, I don’t see anything in the automobile requirement that says we will grant an automobile exception as to taxicabs but we — or as to private vehicles, but we won’t as to taxicabs.

I think the same factors, the same two basic criteria that allow the warrantless automobile search are applicable in this situation here.

I think they are present.

I think there is certainly the probable cause to believe that the taxicab contains contraband, and I think, given that, given the situation, you have the fact that there are certainly exigent circumstances.

Now, the officers, I believe, testified in the hearing, in the pretrial suppression hearing, the Little Rock Airport is rather uniquely situated, in that, there’s an observation deck up here.

There is a baggage area here and here’s the door.

Joseph H. Purvis:

Out of which — the cab the officers apparently were up here on the observation deck watching all of this.

William H. Rehnquist:

Why wouldn’t that — I can see how that might give them probable cause to seize the suitcase, but how about searching at an opening right on the spot?

Joseph H. Purvis:

I think you have had exactly the same thing and, arguably, a lesser intrusion into the privacy of the owner of the goods and the owner of the vehicle and what not than you would in the Carroll case because —

Thurgood Marshall:

How can you say you’ll search in the vehicle, which is a taxicab, when you’re searching a bag which the taxi company doesn’t own, the taxi driver doesn’t own?

You’re searching the suitcase.

Joseph H. Purvis:

You are searching the suitcase —

Thurgood Marshall:

Right.

Joseph H. Purvis:

But, it is an intrical part.

Thurgood Marshall:

And I —

Joseph H. Purvis:

There is no —

Thurgood Marshall:

Does the respondent complain about the search into the cab?

Joseph H. Purvis:

Does the respondent?

Thurgood Marshall:

Yes.

No, he doesn’t complain about that at all, does he?

Joseph H. Purvis:

Apparently he does not, no.

Thurgood Marshall:

So, why do you keep saying that they had the right to search the cab?

Joseph H. Purvis:

Because if you want to take the crux of the argument further, and essentially what the issue is here, we do not think that Chadwick applies to restrict officers who are making a legitimate automobile exception search.

Thurgood Marshall:

You take that and you search all beings and you search everything in it and open it up?

Joseph H. Purvis:

I think certainly, that they have a right to that.

Thurgood Marshall:

Including a double-locked locker?

Joseph H. Purvis:

I would question as to the distinction of the right of privacy between an individual as to the contents of his actual seats of the car raised in peril.

Thurgood Marshall:

If there was a double-locked trunk in a car, could you search it?

Joseph H. Purvis:

I think, possibly, you could.

Thurgood Marshall:

By opening the lock and breaking the lock?

Joseph H. Purvis:

I think, possibly, you could.

Thurgood Marshall:

And that wouldn’t hurt Chadwick at all?

Joseph H. Purvis:

No, sir, because I think —

Thurgood Marshall:

Just ignore it?

Joseph H. Purvis:

I think as long as you are —

Thurgood Marshall:

Just ignore it?

Joseph H. Purvis:

No, sir.

I think as l — I think you’re talking apples and oranges.

I think Chadwick has its own relm.

Thurgood Marshall:

I don’t like to ask which one is apple and which is orange.

Lewis F. Powell, Jr.:

General, the suitcase in this case was unlocked, wasn’t it?

Joseph H. Purvis:

Yes, sir, it was.

Lewis F. Powell, Jr.:

In your view, does that make a difference so far as Chadwick is concerned?

Joseph H. Purvis:

I think it certainly is a criteria to be considered along with the totality of the facts.

Now, it’s also got to be remembered here, the officers did not — they were not separate herky-jerky instances.

The officers did not stop the individuals, and then they did not place them under arrest, and then they did not seize the suitcase and take it out and do a search.

The officers stopped the cab with the aid of another car finally in rush hour traffic, got the individuals out, and immediately asked the cabdriver if he would open the trunk of the car.

The suit case was still in the trunk of the car.

The trunk — the suitcase was immediately popped open.

It sa — they saw that it contained marijuana.

They closed it up and put the individuals under arrest and confiscated the suitcase, and down to the station they went.

Thurgood Marshall:

Excuse me.

You said popped open, of its own volition?

Joseph H. Purvis:

No, I said they — “popped” is a really colloquial term.

Thurgood Marshall:

Excuse me, I missed —

Joseph H. Purvis:

I’m sorry I used that.

Thurgood Marshall:

I misunderstood that.

Joseph H. Purvis:

But, they opened the suitcase.

But, apart from there, Mr. Justice Marshall, defined exigent circumstances in his dissent in United States versus Watson saying that where law enforcement officers have probable cause to believe that an offense is taking place in their presence and that the suspect is, at that moment, in possession of the evidence, then exigent circumstances exists.

Now, there’s no question but that they had probable cause to believe that that suitcase and that the defendant here was in possession, was committing an offense, and did have the evidence within his possession.

And, I don’t think Chadwick, and indeed I don’t know of any case that says, as respondent would have this Court believe, that upon stopping this vehicle as they were authorized to do that exigent circumstances somehow flitter away like butterflies or moths in the morning light.

I just do not think that that happens.

In fact, by looking at the facts in Carroll where the search was conducted after they had stopped Mr. Carroll’s automobile some-15 miles away from Grand Rapids, in the Chambers case where the search was done at the police station after they had brought the vehicle back, this leads to —

Potter Stewart:

Is it your submission that there was probable cause not only to search but at the time that there was probable cause to arrest —

Joseph H. Purvis:

Yes, sir.

Potter Stewart:

The occupants of the cab?

Joseph H. Purvis:

And, I think there was probable cause to rest on the suspicion and I think, when the officers observed the contents of that suitcase, which I think under the circumstances of this particular case, was a very minimal or probably a far minimal privacy intrusion than it would have been to have arrested the cab driver and the two occupants thereof and have driven all of them down to the police station and waited at least two hours while some magistrate was hunted up and a warrant was obtained.

Potter Stewart:

And where was the suitcase in the cab?

Joseph H. Purvis:

Suitcase was in the trunk of the cab.

Potter Stewart:

In the trunk.

So, under Chimel, it’s doubtful whether this would’ve been —

Joseph H. Purvis:

Yes, sir.

Potter Stewart:

Search incident to allow for it.

Joseph H. Purvis:

And, we try —

Potter Stewart:

I was thinking about the Rios case which involved a taxicab.

I don’t know if you’re familiar with it, 364 US involve the stop of a taxicab.

Joseph H. Purvis:

I must confess that I’m not really familiar with it.

John Paul Stevens:

General Purvis, let me go back to a question the Chief Justice asked you about what were the exigent circumstances and to the Supreme Court of Arkansas’ opinion, they say, with the suitcase safely immobilized, it was — there was no risk that the evidence might be lost.

What were the exigent circumstances?

Joseph H. Purvis:

As I reiterated before, and let me preference this, Mr. Justice Stevens, with the remark that I think it seems to me quite obvious, that the Arkansas Supreme Court was so bound and determined to fit the facts of this case within the ambit of Chadwick that it did everything it could, including inventing and misconstruing argument on behalf of the state try to shoehorn the facts within that case.

John Paul Stevens:

That may be, but I didn’t really hear your answer to the Chief Justice’s question.

I haven’t heard you address my question.

Joseph H. Purvis:

I —

John Paul Stevens:

What were the exigent circumstances?

Joseph H. Purvis:

I think, sir, that the exigent circumstances were that you have a defendant and a just met confederate who are in a moving vehicle who are moving away from the airport in rush hour traffic, 5:00 on a Friday afternoon, after the Courts have closed to a point unknown on one of the busiest streets in town.

And, I think those were exigent circumstances.

Thurgood Marshall:

For opening the bag?

Joseph H. Purvis:

Yes, sir.

Thurgood Marshall:

Or for stopping the cab?

Joseph H. Purvis:

I think both because I think —

Thurgood Marshall:

Well, what were the exigent circumstances why they couldn’t have carried the bag to the police —

Joseph H. Purvis:

I think —

Thurgood Marshall:

Station or some place?

Joseph H. Purvis:

Mr. Justice Marshall, that under the facts here where you have, as we contend, a legitimate automobile search, that given the language of Chambers v. Maroney, there is no constitutional difference between a search — warrantless search at the scene and taking the individuals all back to the police station.

Thurgood Marshall:

Well, why couldn’t you have gotten a warrant?

Joseph H. Purvis:

There couldn’t have been a warrant obtained at which juncture, after the search, before the search?

Thurgood Marshall:

At any time.

Joseph H. Purvis:

There could —

Thurgood Marshall:

That’s a whole lot of leeway.

Joseph H. Purvis:

Yes, sir.

I don’t think a warrant could’ve been obtained before these officers went to the airport because all they had —

Thurgood Marshall:

Alright, well, after that?

Joseph H. Purvis:

Were facts.

Alright, certainly, after the fact, these officer were engaged in a rather high-speed chase through the traffic.

Thurgood Marshall:

When this chase was over and the car, the motor had cooled off, could they have gotten the warrant then?

Joseph H. Purvis:

Well, sir, I don’t believe the motor had cooled off by the time they had done the search.

Thurgood Marshall:

Well, if the motor was still hot, could they have gotten it then?

Joseph H. Purvis:

They could have, Your Honor, but I —

Thurgood Marshall:

Well, why didn’t they?

Joseph H. Purvis:

I do not —

Thurgood Marshall:

What was the exigent circumstance —

Joseph H. Purvis:

I think —

Thurgood Marshall:

— could not get in there?

Joseph H. Purvis:

It goes back to the fact that, given a valid auto search, the exigent circumstances do not immediately vanish when you have stopped the individual.

Thurgood Marshall:

Or you could search anything then?

Joseph H. Purvis:

Our point is that, given an automobile exception, that it naturally extends to the contents of the vehicle.

Thurgood Marshall:

You could have broken open a safe?

Joseph H. Purvis:

If it were — I think, if it were within an automobile —

Byron R. White:

General Purvis —

Joseph H. Purvis:

And you were there pursuant to a legitimate exception search.

Byron R. White:

You don’t suggest there are any more exigent circumstances here than would be — than would accompany an ordinary automobile search.

Do you think the automobile exception, as you call it, rests on some assessment of the generality of exigent circumstances or not?

Joseph H. Purvis:

I think, to a certain extent, Mr. Justice White, there has to be a determination made by officers who are there at the scene based upon their practical experience or not.

Byron R. White:

Yes, but Carroll and Chambers are saying that you can search a car on probable cause without a warrant.

Now, just as a general proposition —

Joseph H. Purvis:

Yes, sir.

Byron R. White:

You could stop it and you don’t stop in every individual case to decide whether there are exigent circumstances in that particular case, do you?

Joseph H. Purvis:

No, sir, but I think that the cases seem to make —

Byron R. White:

But is this — does this one have any more exigent circumstances than the —

Joseph H. Purvis:

I think, under the facts, I cannot recite more exigent circumstances.

William H. Rehnquist:

Well, I had understood you to say that the police, in effect, had two or three balls bouncing in the air at one time and that, for that reason, it was a stronger case than the ordinary automobile search case with the confederate, the suitcase, and the person in the cab.

Joseph H. Purvis:

Yes, sir.

William O. Douglas:

It seems to me, your real answer is that if it’s within the automobile exception, as you contend, you don’t need exigent circumstances.

Joseph H. Purvis:

No.

William O. Douglas:

It seems to me, that’s the argument you should be making.

Potter Stewart:

The moving automobile makes for the exigent circumstance.

Byron R. White:

That is the exigent circumstance?

Joseph H. Purvis:

Yes, sir.

Potter Stewart:

A moving automobile on a highway or street?

Joseph H. Purvis:

Forgive me for not going into that, but this Court has noted time and time again that, given a moving automobile, that the probable cause to believe that it contains contraband is the real touchstone with the Fourth Amendment.

Byron R. White:

Do you think if you could get into a locked house, you could get into a locked suitcase in a trunk?

Joseph H. Purvis:

Yes, sir, and I think to hold anything otherwise would create, as the Ninth Circuit held in Finnegan, would create wholly a logical results or it would, as we contend, totally emasculate the automobile exception because you get into a situation.

If you are going to create an exception for luggage, what constitutes luggage?

I have ridden on many buses in my lifetime with people who were too poor to buy formal American tours to Emilia Earhart who carried their whole possessions in a sack.

And, what practically occurs then at that point is you have officers who do not know who automatically then think I cannot do, given a valid auto search stop or stop in auto search, you have officers who are afraid who will not do a search of the vehicle of any sack, bag, what not.

Harry A. Blackmun:

General Purvis, aren’t there really two kinds of situations that might possibly call for different rules?

One is if you have probable cause to believe somewhere in a vehicle, maybe in luggage, maybe in the trunk, maybe in the glove compartment there is contraband.

And, another case where you have probable cause to believe it’s in a specific piece of luggage and you know there’s nothing else in the taxicab.

Do you think you should apply the same rule to both of those cases?

Joseph H. Purvis:

Yes, sir, I think you can because I think, to do otherwise, you tend to focus the Fourth Amendment away from the right of privacy and toward places and things.

Byron R. White:

Well, what if your — what if there’s been a piano stolen and you stop a truck and you want to search for — see if the truck’s got the piano in it?

You think you can search in the glove compartment?

Joseph H. Purvis:

I think, for anyone to expect that a piano would be stuffed in a glove compartment would be rather ludicrous.

Byron R. White:

So your answer is no, or not?

Joseph H. Purvis:

I think —

Byron R. White:

Say, you’ve got probable cause to stop the truck to search for the piano.

Joseph H. Purvis:

I think you probably could.

Byron R. White:

Well, why can’t — why, if he’s got probable cause to search for a piano?

Joseph H. Purvis:

I think —

Byron R. White:

Why can’t you get into the glove compartment?

Joseph H. Purvis:

I think when you’re talking glove compartment, you arguably bring in some new exceptions to the Fourth Amendment.

You arguably bring in Chimel.

Warren E. Burger:

How about the Terry aspect that you might want to search in the glove compartment to see if the driver had a 45-automatic?

Joseph H. Purvis:

Indeed, and —

Warren E. Burger:

Which he could get in the glove compartment.

Joseph H. Purvis:

Exactly.

Thurgood Marshall:

Which he couldn’t get if it was in the trunk.

Joseph H. Purvis:

Yes, sir.

But, here again, we’re talking apples and oranges.

We’re talking search incident as opposed to if there is exigent circumstance.

Thurgood Marshall:

I know.

You’re the one talking apples and oranges.

I’m not.

Joseph H. Purvis:

No, sir.

I tried to make the distinction over here that you were dealing with a different parent.

Thurgood Marshall:

The answer to me that it’s apples and oranges is pretty in effective in that you talk old apples and old oranges.

Joseph H. Purvis:

Yes, sir?

Thurgood Marshall:

Now, as I understand it, once you stop it, once you have a reason to stop the vehicle, you have the right to search everything in — everybody and everything in that vehicle.

Joseph H. Purvis:

Yes, sir.

Thurgood Marshall:

So, if you were looking for a diamond ring, you have the right to rip open the suitcase in the trunk, wouldn’t you?

Joseph H. Purvis:

I think, possibly, you would.

Yes, sir.

Thurgood Marshall:

I imagine, the shoes?

William H. Rehnquist:

What about comp —

Thurgood Marshall:

There’s no restrictions at all.

William H. Rehnquist:

What about probable cause to arrest someone in the vehicle?

William H. Rehnquist:

Do you think that would also provide a basis for searching everything in the vehicle or just what you could call a search incident to the arrest?

Joseph H. Purvis:

I think you could really proceed really under either theory.

William H. Rehnquist:

Well, do you think if you simply have probable cause to stop a vehicle because you had reason to believe that a suspect was in the vehicle without any additional evidence, you could search the trunk, get out a suitcase, and search the suitcase?

Joseph H. Purvis:

Yes, Your Honor.

William H. Rehnquist:

Although, perhaps the person that you were — had probable cause to arrest was thought to be fleeing a suspect and has no connection with the suitcase?

Joseph H. Purvis:

I certainly think you can and I think that that situation, Mr. Justice Rehnquist, is extremely analogous to the situation in Chambers where the officers had probable cause to believe that that vehicle contained four men who fit the description of the robbers of a store, and that was the reason that they stopped.

And, once given that valid auto exception search, I think or — it allowed them or deemed reasonable the search of the entire vehicle.

Harry A. Blackmun:

May I be sure I understand your answer to Mr. Justice White’s hypothetical about a truck containing a piano.

Joseph H. Purvis:

Yes, sir.

Harry A. Blackmun:

Do you take the position that that would authorize a search of the glove compartment?

Joseph H. Purvis:

Yes, sir, and I think it could also be authorized and probably would better be authorized in that situation as a search incident to —

Harry A. Blackmun:

No, just the automobile exception.

Under your understanding of the automobile exception, knowing that a piano is in the truck would justify a search of the glove compartment.

That’s your view, as I understand it.

Joseph H. Purvis:

That’s carrying it to an extreme, but I think —

Harry A. Blackmun:

Well, you have an extreme view.

Warren E. Burger:

Do you relate this again to the Terry concept that you’re entitled to make a prophylactic search to see if there’s a 45-automatic in the —

Joseph H. Purvis:

I think —

Warren E. Burger:

Somewhere in the position —

Joseph H. Purvis:

The search of the glove box —

Warren E. Burger:

Somewhere in the possession —

Joseph H. Purvis:

Would be far more akin to that.

Warren E. Burger:

Under the seat of the driver and so forth.

Joseph H. Purvis:

Yes, sir.

Warren E. Burger:

It certainly takes the position from your predicate that you can search the driver himself to see whether he had a 45-automatic somewhere.

Joseph H. Purvis:

It seems to me, to — something to be remembered here is that this Court has also repeatedly held that those who occupy an automobile moving on the highway operate under a diminished expectation of privacy, and to hold that it is the automobile itself which enjoys that diminished expectation of privacy, I think is frivolous.

Certainly, there’s no such thing as an inanimate object that occupies or that — in yours or has that —

Warren E. Burger:

I think I should tell you, you’re into, I think, four minutes of your rebuttal that you wanted to save.

Joseph H. Purvis:

Alright, I will save the rest for rebuttal, Your Honor.

Thank you.

Warren E. Burger:

Mr. Lassiter.

Jack T. Lassiter:

Mr. Chief Justice and may it please the Court.

I am Jack Lassiter, the Court-appointed attorney for the respondent, Mr. Sanders.

What do we do with the suitcase in the trunk of the cab?

Before I start in here, let me say it is simply the respondent’s position that we have no exigent circumstances here once the cab is stopped, once Mr. Sanders is arrested, along with his cohort, Mr. Rambo, and the suitcase is seized.

I can’t think of what possible exigency then exist.

Whether Mr. Sanders was placed in the rear of the police car or he was handcuffed outside the police car prior to the entry into the truck — trunk of the cab I think, in either situation, any exigency seized at that point.

Byron R. White:

At what point?

Jack T. Lassiter:

When the cab is stopped and Mr. Sanders is placed under arrest, and then the trunk is opened and the suitcase itself is seized, removed from the trunk of the cab.

Byron R. White:

Why could they get into the trunk?

Jack T. Lassiter:

Well, I have not argued that they didn’t have probable cause to open the trunk and seize the suitcase itself, just that that they could not then enter the suitcase without prior judicial authorization.

Byron R. White:

Well, assume there’s a — assume there’s probable — at least let’s just assume there’s probable cause to believe that there was contraband or something in the suitcase.

Jack T. Lassiter:

Yes, Your Honor.

Byron R. White:

And — so, there was probable cause to stop the cab.

And, once the arrest is made and the cab is stopped, why do I — why wouldn’t you have to get a warrant to get in the — to make the search of the car, of the taxi cab?

Jack T. Lassiter:

Well —

Byron R. White:

Certainly, why not get — have to get a warrant to get into the trunk?

Jack T. Lassiter:

I think you could certainly argue that and maybe I’m arguing against my position a little bit, but the Fourth Amendment analysis based — is based on the expectation of privacy.

What we want to protect is the content of the suitcase.

If we follow the reasoning in Carroll and the other car search exceptions, we allow the officers to get into the automobile due to the mobility factor.

Byron R. White:

And the trunk?

Jack T. Lassiter:

Well, the lower Courts have in the past.

Now, the alternative here would have been to take the cab on into the station house, I guess, and get a warrant before they opened the trunk.

And, you can certainly argue that once the piece of luggage is placed in the trunk and the trunk is closed that the expectation of privacy, I guess, then attaches to the contents of the trunk.

Harry A. Blackmun:

But only the cab driver has standing there.

Thurgood Marshall:

That’s the cab driver.

Harry A. Blackmun:

Only the cab driver has standing to object opening the trunk —

Jack T. Lassiter:

That’s correct.

Harry A. Blackmun:

And he consented here.

Jack T. Lassiter:

That is what I was about to get to here and now.

Jack T. Lassiter:

Mr. Sanders was not the owner of the cab.

He didn’t have control of the trunk and it was the driver himself who could, I presume, consent to opening the trunk for the officers but not consent to the officers entering the suitcase.

Thurgood Marshall:

But the officers had a perfect right to take that trunk — that suitcase out of the trunk, don’t you admit that?

Jack T. Lassiter:

I think so.

I think they had a perfect right to seize the suitcase.

Thurgood Marshall:

But not to open it?

Jack T. Lassiter:

Correct.

William H. Rehnquist:

What if the police had probable cause to believe that there were some sort of a loaded weapon in the suitcase or something to that effect, do you think they would have a right to open it on the spot rather than carted it on for a couple of hours until they could get it to a magistrate?

Jack T. Lassiter:

Well, it’s certainly not in the Chimel wings braid is into the truck.

Mr. Sanders has already been arrested.

He’s not going to reach back there and pull it out.

William H. Rehnquist:

He couldn’t get access to it pers — the police could’ve presented — prevented him from getting access to it without having opening on the spot.

Jack T. Lassiter:

Yes, Mr. Justice Rehnquist.

Thurgood Marshall:

Couldn’t the police have put in the back and —

Jack T. Lassiter:

The transcript is quite clear on that.

Thurgood Marshall:

Couldn’t they put it in the back of their car?

Jack T. Lassiter:

Certainly.

Thurgood Marshall:

And lock it with their key?

Jack T. Lassiter:

Certainly.

William H. Rehnquist:

But wha — isn’t there some re — something to be said for the idea that the police shouldn’t be obligated to carry around for several hours a trunk which they have probable cause to believe has a weapon in it without being able to open it?

Jack T. Lassiter:

Well, what they very simply could do with it, what the LRPD would do with it is take it back to the station house and put it in the property range so it would not go anywhere then and nobody is going to get back there to get the weapon.

It seems to me that the citizenry is protected at that point when somebody taking the weapon had the suitcase and doing something with it.

Byron R. White:

Suppose you arrest a man on the street whom you’ve got probable cause to arrest or you’ve got a warrant for his arrest, and he’s carrying a suitcase.

Now, can you search the suitcase right on the spot or not?

Jack T. Lassiter:

Only if Chimel were to apply to the fact situation.

Byron R. White:

Well, he’s got it in his hands.

He’s walking along.

Jack T. Lassiter:

Alright, what if they arrest him —

Byron R. White:

He’s right on the street.

Jack T. Lassiter:

And they handcuff him and the suitcase is then standing by his side where he can’t possibly get into it, I think maybe that’s a case-by-case determination, Your Honor.

Jack T. Lassiter:

Certainly, in some instances, Chimel would justify the entry.

In some, it would not.

In Chadwick, the individual was sitting on top of the —

Byron R. White:

I didn’t say whether there was probable cause to — does it make any difference, in your answer to my question, whether there was probable cause to think there was anything in the suitcase?

Jack T. Lassiter:

If there is probable cause to arrest the individual —

Byron R. White:

Yes?

Jack T. Lassiter:

And Chimel justifies the entry, they could go ahead into the suitcase to look for weapon to protect themselves.

Byron R. White:

So, your answer is, no, it doesn’t make any difference whether they have probable cause to think there’s anything in the suitcase.

Jack T. Lassiter:

That would be correct, as long as the suitcase is within his wingspread.

Once, I guess, the suspect himself is immobilized by being handcuffed or placed in the back of the police unit, at that point he can’t reach into that briefcase in search for weapon and there is no reason for the police to enter it.

Lewis F. Powell, Jr.:

Mr. Lassiter, I take it from what you’ve said that you think the proper procedure would’ve been for the police to take the suitcase to headquarters and obtain a warrant there.

Jack T. Lassiter:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Is that correct?

Jack T. Lassiter:

They could’ve taken Mr. Sanders back at that time, along with the suitcase, and they could’ve held him while they procured a warrant.

Lewis F. Powell, Jr.:

Yes, but I — do you agree that there would’ve been sufficient probable cause for the magistrate to issue a warrant?

Well, let’s assume for the moment that there was such probable cause.

I would suspect —

Jack T. Lassiter:

I hesitated answering that because I had some questions after reading the transcript as to where the informant had received his information, whether it really reached the requirements of Spinelli and Aguilar, but that has been conceded far below, I guess, that probable cause was present.

So, let’s —

Byron R. White:

You didn’t concede a moment ago that they could seize the suitcase.

John Paul Stevens:

Yes, I think he did.

Byron R. White:

Which would require probable cause.

Jack T. Lassiter:

Yes, what I’m saying is I’m not raising that here and, for purposes of our argument, we can’t concede that they did have probable cause to seize the suitcase and that a warrant would have been issued.

Lewis F. Powell, Jr.:

And, if the suitcase in fact had been empty of any contraband, in other words if there was nothing incriminating in it, your client would’ve been more inconvenienced by having it taken to the station house —

Jack T. Lassiter:

It certainly would.

Lewis F. Powell, Jr.:

And having it opened on the spot.

Jack T. Lassiter:

It certainly would have, and he could also have sit on the spot, “I don’t want to go down to the station house.

Go ahead and search it here and I’ll be on my way.”

Thurgood Marshall:

“And I’ll open it for you.”

Lewis F. Powell, Jr.:

Is there as privacy interest in contraband?

Jack T. Lassiter:

No, Your Honor.

I think there is not.

However, the next question that flows from that is, is there an expectation of privacy to nine pounds of marijuana in the suitcase?

All I can say is the focus of the analysis in the Court — by the Court in the past has been on the expectation of privacy that attaches to the area itself, here, the suitcase.

If there is no expectation — if the analysis centered on whether or not there is ex — an expectation of privacy in contraband, we would not have had the Chadwick decision because that’s precisely what we had there, a footlocker full of marijuana.

Warren E. Burger:

Mr. Lassiter.

Jack T. Lassiter:

Yes, Your Honor?

Warren E. Burger:

We’ve been talking about the automobile exception.

Do you make a distinction between an automobile search exception with respect to a private car and to a common carrier?

The taxicab is a common carrier, is it not?

Jack T. Lassiter:

Yes, it is.

I think —

Warren E. Burger:

Let me pursue that by saying, to take the illustration, the hypothetical Justice White posed, about the highjacked truck which has stolen a piano and the driver is part of that operation.

There, you have not a common carrier but a private car.

Would you say that you could search the glove compartment as well as searching the back of the car to see if the piano was there?

Jack T. Lassiter:

If the car is stolen and the driver is —

Warren E. Burger:

No, not stolen.

It’s just a private truck, a private highjacker and there is, indeed, a stolen piano or several stolen pianos, as you would have it, but can they search the glove compartment and the rest of the car to see if he’s got a 45-automatic, a prophylactic search?

Jack T. Lassiter:

If they’re looking for the piano, then you can’t look for an elephant in a matchbox, I think somebody told me in law school one time.

You sure wouldn’t have reason to believe that there was a piano in that glove box.

Again, Chimel may come into play.

If the glove box itself is within the reach of the individual who’s been arrested and it is unlocked, perhaps the officers can enter therein.

We certainly, through the Gustafson and Robinson opinion, indicate that the officers on even traffic stop can —

Warren E. Burger:

Wouldn’t the concept of Terry indicate that you could make that prophylactic search?

It wouldn’t be much profit in finding that a piano or two pianos in the trunk if the driver, meanwhile, could go and get a 45-automatic out of his glove compartment or somewhere and —

Jack T. Lassiter:

Yes, and that would again —

Warren E. Burger:

Attack the officers.

Jack T. Lassiter:

Yes, and I would agree with that.

And, that, again would be your holding in Chimel.

Warren E. Burger:

So, when you stop the truck with the piano, you can search the entire truck to see if there’s a weapon.

Jack T. Lassiter:

Well, that’d depend on what have been done with the driver.

If he’s been taken and placed in the back of the police unit with locked doors, there’s not going to be much danger that he’s going to be back in the front of the truck, car, cab, or whatever to get the weapon.

Warren E. Burger:

Well, you can’t have the rule of law applicable depending on the sequence of events, whether they took the man — the driver in handcuffs before they had determined that he had the stolen piano.

Aren’t they entitled to make a prophylactic search as soon as they have probable cause to stop the private car as distinguished from a common carrier?

Jack T. Lassiter:

Your Honor, I’m not sure that that — I’m not sure that the Court wants to tell law enforcement officers that any time they stop an individual when there’s probable cause of arrest and then not probable cause for search of the automobile, that the officers can go in and completely search the interior of the automobile, once the driver has been removed from access to the automobile —

Warren E. Burger:

Hasn’t the Court gone beyond that in Terry, among other cases, that not only — in Terry, they could search the person.

Jack T. Lassiter:

Correct.

Warren E. Burger:

Which, is a much greater invasion of privacy than searching the glove compartment.

Jack T. Lassiter:

And, we justify that because the police need to protect themselves by searching the person, and we did that same thing in Robinson.

You can search the driver on a traffic stop.

But, it seems to me that, and our cases in the past have said that, whenever we conduct a warrantless search, those situations must be carefully defined and they must be justified by exigencies or the reason for the search must be imperative or compelling.

And, it seems to me that once the driver is removed from the vicinity of the automobile, there’s no compelling reason then to enter the automobile looking for weapon in your hypothetical.

If I might return to a question you raised a moment ago, is there a distinction between a cab and a private vehicle, there certainly might well be.

I think a passenger in a cab certainly has a lesser expectation of privacy than I do in my car out on the street to what’s contained in my glove compartment or under my seat.

But, he still has an obvious expectation of privacy to the contents of his suitcase.

There was a question raised a moment ago as to whether it made any difference whether or not the suitcase was locked.

That is a factor raised by the state in an attempt to distinguish Chadwick from the instant case.

Arguably, there is a — an ex — a lesser —

John Paul Stevens:

Mr. Lassiter, it just occurred to me that if we treat this as an automobile exception case and therefore you have an objection raised by two passengers to the search or one passenger, I don’t think your client has standing to object to the search of the suitcase.

Jack T. Lassiter:

Rakas.

John Paul Stevens:

Yes.

Jack T. Lassiter:

Rakas says that the passenger in the automobile does not have standing to raise the motion to suppress if he — if the car doesn’t belong to him and he does not exhibit any sort of proprietary interest in that item which the state is seeking to introduce into evidence, the Court rejecting the target theory.

Now —

Potter Stewart:

Well, when you — when a passenger gets into a taxicab, the car portend does belong to him.

He’s hired it.

Isn’t that correct?

William H. Rehnquist:

It’s his suitcase, too.

Jack T. Lassiter:

That’s correct and that that would be — I’m moving to hopefully distinguishing the standing problem here.

The difference in what we had in Rakas and what we’ve got here, I think, are two-fold.

One, the police alleged that this marijuana contained in the suitcase belongs to the defendant.

Jack T. Lassiter:

Haven’t they given him standing by doing that?

And that —

Harry A. Blackmun:

Not unless he paid for the cab fare, I don’t think.

Jack T. Lassiter:

Your Honor?

Harry A. Blackmun:

Not unless he paid the fare, under Rakas that is.

Jack T. Lassiter:

And, secondly here, in Sanders, the contraband in the cab is the crux of the charge.

He’s charged with possession of marijuana with intent to deliver.

In Rakas or Rakus, however it’s pronounced, the individual there was charged, I believe, with robbery or some violent crime.

And, the item introduced is a weapon.

He’s not charged with felony in possession of a firearm.

So, I think the case is distinguishable.

It is the — we simply haven’t have enough time for the lower Courts to throw it around enough to know exactly what we’re going to do with it.

I would argue that he does have standing because the crux of the charge is the possession of the contraband, in that, it was his suitcase in the trunk of the car and the police say it was his.

William H. Rehnquist:

Well, he also presumably rented the suitc — rented the trunk as well as the space he was riding in for the purposes of that particular trip.

Jack T. Lassiter:

Certainly.

I think it was about to comment concerning the fact that the suitcase was unlocked.

I don’t really see that that invites public entry into the suitcase any more than you’re inviting someone into your house by leaving a door unlocked or a window unlatched.

Perhaps the reason, and I must go to this any one, that a number of us travel with our suitcases unlocked.

It’s just for the reason that we don’t expect people to get into them, other than perhaps at a border entry point or at a checkpoint prior to getting into an airplane.

I really don’t see that as a persuasive distinguishing factor.

Byron R. White:

Well, if there’s a weapon and if there is a reason putting a lock, could anybody ask?

Jack T. Lassiter:

That would be correct.

There is a distinction that the Attorney General raises or portends to raise based on Chambers, in which he addresses language therein that speaks of the lesser and greater intrusion analysis in Chambers.

The argument there was that once the car is seized, the subsequent entry into the automobile later on is just simply a lesser intrusion from the greater intrusion into the constitutional protection of seizing the automobile.

It would seem to me that that analysis was abandoned in Chadwick in a footnote to the opinion written by Mr. Chief Justice Burger, in which he points out that there is a distinction between the proprietary property interest in the object, be it a car or a suitcase, which is not — which is something entirely different from the individual’s privacy expectation in the contents thereof.

Certainly, as was stated in Chadwick, the far greater intrusion is into the suitcase, not the mere seizure of it.

There is one further point that I would raise to the Court.

Obviously, we take the position that the Fourth Amendment mandate that we should be protected in our persons, houses, papers, and effects and that the exceptions to the general warrant requirement, carefully drawn, should require the issuance of a warrant before intrusion into the suitcase under circumstances in this case.

I feel that that’s a better rule of law.

There is one further —

Byron R. White:

Say, you arrested a man on the street with probable cause or with a warrant and he’s carrying a suitcase and it’s locked, and a — you search him and you find a sealed envelope in his inside pocket.

Can you open the envelope?

Jack T. Lassiter:

It would appear, under Terry —

Byron R. White:

Under Terry?

Well, what about a search incident to arrest?

Jack T. Lassiter:

Unless the envelope seemed to contain a weapon, I don’t think you could justify it.

Warren E. Burger:

What if it was bulky enough to have a few thousand dollars worth of heroine?

Jack T. Lassiter:

Well, that —

Warren E. Burger:

It might be in several government bonds or it might be some heroine.

Could you open it then?

Jack T. Lassiter:

I think so, under Robinson.

Don’t — there, we find that —

William H. Rehnquist:

You can search anything on the guy’s person.

Jack T. Lassiter:

I believe, yes, Your Honor.

That’s correct.

In response to your question, I believe under Robinson, I believe, there, we had a marijuana cigarette found in a crushed cigarette package.

So, the answer to your question, I believe, would be yes, you could.

Byron R. White:

But you can’t search a suitcase and examine it.

Jack T. Lassiter:

Right.

Byron R. White:

It’s just a different antici — expectation of privacy, I gather.

Jack T. Lassiter:

The —

Byron R. White:

Is that your rationale?

Jack T. Lassiter:

There is no justification for the warrantless entry into it.

We have justification for the warrantless entry —

Byron R. White:

Into the envelope?

Jack T. Lassiter:

Yes.

Byron R. White:

Into the sealed envelope?

Jack T. Lassiter:

I think, under Robinson, you would.

It is a difficult stance we make.

Thurgood Marshall:

Is it true that there’s no constitutional issue involved?

Thurgood Marshall:

Isn’t it the fact that when you arrest a man, you look at everything he has solely for the purpose if inventory, and that’s the excuse?

Am I right or wrong?

Jack T. Lassiter:

I think the Offerman case is —

Thurgood Marshall:

There’s no litigation about it.

They do it and they say they’re doing it for inventory, and both sides agree that it’s alright.

Jack T. Lassiter:

Well, I don’t agree that it’s alright.

The Opperman case, I think, has been used in a number of cases.

Thurgood Marshall:

You mean, when a man is arrested he can’t be searched before he’s put in jail?

Jack T. Lassiter:

No, Your Honor.

I’m not saying that.

Thurgood Marshall:

I hope you don’t.

Jack T. Lassiter:

No.

Certainly, he could be patted down and his person searched.

Thurgood Marshall:

He can be searched.

Jack T. Lassiter:

Alright, the — that’s correct.

The individual can be searched.

Potter Stewart:

Within the limits of Chimel.

Jack T. Lassiter:

Yes, and —

Potter Stewart:

After a lawful arrest.

Jack T. Lassiter:

Robinson and Terry in the cases that talk about the search incident to arrest of the individual.

I would not carry the inventory — well, if he raised the question concerning inventory as to the person of the defendant arrest, certainly he can searched.

I don’t think the inventory case, Opperman, justifies entry into the suitcase or briefcase.

I think the police can take the suitcase or briefcase.

They could put a piece of tape on it, seal it, and put it on the property rim and all the rationale, the supporting rationale, of the inventory search is deemed satisfied.

John Paul Stevens:

Of course, what about the other things on the spectrum?

You’ve just mentioned the briefcase.

Suppose it’s just a shoebox and then you get into a woman’s handbag and — you can say this — that isn’t this case, but we have to think about these, don’t we?

Jack T. Lassiter:

Yes, Your Honor.

I understand that, and that certainly raises a can of worms, but I think the test must be that the object, the repository personal effects must be clearly without doubt, without argument.

Obviously, a repository personal effects, a shoebox that have been taped shut, a box that’s not taped shut, a sack that’s just rolled down, I don’t think meets that test.

Jack T. Lassiter:

I don’t know what we’d do if the box is taped shut, the shoebox is taped shut.

Byron R. White:

I suppose your suitcase had a locked container inside it.

You’d have to get two horns?

Jack T. Lassiter:

No, I think one warrant would be sufficient to —

John Paul Stevens:

You can go through even six locked containers, each within the other, on one warrant.

Jack T. Lassiter:

Yes, I think so.

Once we say that the expectation of privacy, the sphere that it — the protected sphere could be penetrated, I think, properly with one warrant.

John Paul Stevens:

Yes.

Jack T. Lassiter:

I don’t think there would be a necessity of a series of warrants.

Particularly not in this situation, nine pounds of marijuana could have been, I guess, conceivably in one container inside another container inside the suitcase, but I think once they’re in, they’re properly in.

There is one other matter that I believe to be worthy of mention.

We talk a lot in law enforcement and in defense work about predictability in these cases.

Everybody wants it, the police, the Attorney General, the folks on my side of the dance.

Isn’t it most predictable and most consistent to say that whether this suitcase is in the trunk of the car or it’s on the sidewalk, the police ought to get a warrant to enter it?

In Chadwick, we’ve said that, as far as this repository personal effects is concerned, if it’s outside the car and we can’t get it under Chimel, then the police are going to have to get a warrant.

Should we have a different rule at all in the automobile, wouldn’t it be most consistent to also require a warrant to search it if it’s in the car, unless it happens to fall within the Chimel wingspread.

If we don’t do that, we’re going to have a rather inconsistent situation and you’re going to encourage police to wait until the suitcase gets in the car at the airport and tear off in this high speed chase sometimes through traffic.

I think the better rule would be to require the warrant.

Harry A. Blackmun:

Mr. Purvis, assume that the police had probable cause to — I’m sorry.

I have one more question for Mr. Purvis.

Jack T. Lassiter:

Alright.

Harry A. Blackmun:

Assume that the police had — I got your name wrong.

I’m sorry.

Probable cause to believe that, say, they’d listen to some — intercept with some telephone conversations and one of the spokesmen said “we will deliver contraband from point A to point B in a certain vehicle,” and they don’t tell whether it’s going to be in luggage or what, but it would be somewhere in that vehicle at that time.

The police have strong reason to believe that’s true.

They stop the vehicle and, inside the vehicle, there’s this green suitcase.

Would you agree that under the automobile search exception they could then search the luggage?

Jack T. Lassiter:

No.

Harry A. Blackmun:

You would not?

Jack T. Lassiter:

I would not.

Jack T. Lassiter:

First, let’s assume that —

Harry A. Blackmun:

Because you don’t know whether it’s in the luggage or not.

It’s different from this case.

Jack T. Lassiter:

Okay, let’s assume that — let’s assume you have probable cause here.

This individual supplied the information as a reliable informant we meet in Aguilar and Spinelli and we take off after it.

I think, still, the warrant requirement ought to prevail before we go entering into the suitcase.

Harry A. Blackmun:

But the problem, I suppose, would be that they would not have probable cause to believe it was within any particular suitcase.

It might not — it might be concealed under the — in the tires, in the roof of the car, any sort of place like that.

So, how could they ever get a warrant to search the piece of luggage unless they could say it’s part of an overall search of the vehicle?

Jack T. Lassiter:

Well, I’m not sure that we want them to enter the luggage unless they do have a warrant.

I just — certainly, I can take the decision test distinguishable from this case because they knew that the marijuana was inside the suitcase, and I guess I can have my cake and eat it too in the argument.

But, it strikes me that we need to draw a line somewhere, of course, or choosing it ought to be with our repositories or personal effects in the Courts therein and a police officer should not enter into the suitcase, the footlocker, the briefcase, or whatever that object which, on its face, apparently exhibits an expectation of privacy without the police having a warrant.

Potter Stewart:

Mr. Lassiter, the —

Jack T. Lassiter:

Yes, Your Honor?

Potter Stewart:

You concede, I guess, at least for purposes of this argument that there was probable cause to arrest these people, was there?

Jack T. Lassiter:

Correct.

Potter Stewart:

And, if there was and they were in a moving car, certainly, the arrest would have to be accomplished right then and there and they would’ve had to be — the people would’ve had to be removed from the car.

Jack T. Lassiter:

Correct.

Potter Stewart:

And, also, the — you concede, since there was probable cause to arrest and there was probable cause to search, there was probable cause to search the car without a warrant under Carroll Doctrine and, therefore, to remove the suitcase from the car.

Jack T. Lassiter:

To seize and remove.

Potter Stewart:

Seize and remove.

You concede all of that, therefore, to take the people and to take the locked suitcase down to the station house.

Jack T. Lassiter:

Correct.

Potter Stewart:

But, there, you say there was a warrant needed to open up the suitcase.

Jack T. Lassiter:

Yes, Your Honor.

Potter Stewart:

That’s the limited and rather narrow question of this case, isn’t it?

Jack T. Lassiter:

That’s correct.

Byron R. White:

Well, wouldn’t you say that you’d have to have a separate probable cause to warrant — to get the warrant to get into the suitcase?

Jack T. Lassiter:

Well, certainly, we need something.

Yes, if you’re asking me different probable cause from the arrest.

Jack T. Lassiter:

Here, I think the probable cause for the arrest is sufficient for issuance of the warrant.

I’ll concede that.

If —

Byron R. White:

You what?

Jack T. Lassiter:

I would — I will concede here that the probable cause for arrest —

Byron R. White:

Yes?

Jack T. Lassiter:

Would also be sufficient for issuance of the warrant.

William H. Rehnquist:

For them to search the suitcase?

Jack T. Lassiter:

It — the issue — the key to the issue is getting it before the magistrate.

Byron R. White:

Well, yes, but what would you have to show the magistrate?

Wouldn’t you have to show him — if you’ve got an expectation of privacy in the suitcase and you don’t want it violated, shouldn’t there be some probable cause to believe that there’s something in the suitcase the officer is entitled to seize?

Jack T. Lassiter:

Yes, exactly, and —

Byron R. White:

Well, that’s — that might be quite different from the — suppose you arrested this man for stealing a piano and he had this suitcase with him and you seized him and his suitcase and took him down to the station house.

Now, you — could you get a warrant to search?

Jack T. Lassiter:

No, and the suitcase should not be searched in that situation.

Byron R. White:

So, you do need not only the warrant.

You need a separate probable cause to support the warrant for the suitcase.

Jack T. Lassiter:

Yes, Your Honor.

Sometimes, probable cause for arrest may be the same as far as probable cause issues.

Byron R. White:

It may be the same, exactly.

Potter Stewart:

And it was, really, in this case, wasn’t it?

Jack T. Lassiter:

That’s correct.

William H. Rehnquist:

Well, I take it, if you arrest someone who — because you have probable cause to believe that he just assassinated someone or murdered someone, you might have — that same probable cause would justify you in getting a warrant for searching his suitcase in a way that probable cause to believe he had stolen a piano would not.

I mean, doesn’t it depend a little bit on the kind of offense that you’re talking about?

Jack T. Lassiter:

Yes, certainly.

It — in your hypothetical, if we believe that a murder has been accomplished with the 45-automatic by this individual, he’s seen running from the scene, he’s arrested soon thereafter with the briefcase, I believe, perhaps, we sh — we could get the warrant for entering the briefcase to look for the automatic.

Warren E. Burger:

Well, what you’re saying is that the term “reasonable” in the Fourth Amendment means reasonable under all the circumstances of the particular case with all the new ones that may occur in the variations.

Jack T. Lassiter:

And, hopefully, with these well-defined rules as we can possibly create to give us some predictability of the situation.

Warren E. Burger:

(Voice Overlap) define them very well up to now.

Jack T. Lassiter:

Pardon me?

Warren E. Burger:

No one has been able to define them precisely up to now.

Jack T. Lassiter:

It’s a very difficult problem, Your Honor.

Warren E. Burger:

Very well, Mr. Lassiter.

Do you have anything further, Mr. Purvis?

Joseph H. Purvis:

Just a very few remarks, Your Honor.

First, contrary to Mr. Lassiter, I think, again, let me reiterate, what we have here is not necessary an arrest prior to seizure and all of this, but we have one rather rapid smooth-flowing set of circumstances.

And, it seems clear, to me at least, that the search of the suitcase was clearly justifiable under the automobile exception.

In fact, it was part — in partial and didn’t constitute the search of the automobile itself to hold that there were no exigent circumstances present.

Merely when the officer stopped them would be, number one, it seems to me, to deny the smooth-flowing facts of the case and of the search which was highly contemporaneous to the stopping and, two, to say that they had evaporated in that sort of situation makes it rather impossible to have exigent circumstances present in any situation where you’ve stopped any automobile.

We use the rather farfetched analogy in our brief that, in order to follow this particular logic, you would have to have someone make a John Wayne style leap from one moving vehicle into another, and to conduct the search while the vehicle was still moving and I don’t think that this Court, nor any Court, nor any human being with a whit of common sense would say that that would be required.

It goes simply to the point that exigent circumstances, once present, don’t — do not quickly evaporate merely because the police have stopped the individual.

Harry A. Blackmun:

General Purvis, would it be the same case if, instead of getting in a taxicab, they got on a bus or subway?

Joseph H. Purvis:

I frankly don’t know, Your Honor, because I am not aware of an extension of the automobile exception to any such large common carrier.

Warren E. Burger:

Don’t you think there is a difference between a common carrier and a private car?

Joseph H. Purvis:

Yes, sir, to a certain extent that I do.

Warren E. Burger:

The common carrier might be a taxi which you have commandeered exclusively or you might share it with 2 other passengers, or it might be a bus in which you share it with 50 or 100.

Joseph H. Purvis:

I think that, of all the common carriers of which I know, that the taxicab probably is intended to be a repository of the fewer number of people.

You generally have anywhere from one to four people who obtain a taxicab as opposed to an airplane or a bus where you may have 50, 60, or hundreds.

And, it seems also to me that if you say, as Mr. Lassiter does, well, you can conduct a valid search of this automobile but you can’t — or seizure of the suitcase but you can’t do a search because of the privacy right, then you’re saying that, given a diminished expectation of privacy in the vehicle, that you are going to place then your truck entirely on the place or the thing in which that alleged privacy right was focused, namely a suitcase or a piece of luggage.

And, I think it’s the right of privacy overall and I think, given one who is an automobile, it is expectation of privacy over the contents of the automobile.

His possession is in the automobile that are reduced.

Also, going back too, I think you get — you are confronted again, if you follow Mr. Lassiter’s logic, with the definition of “what is luggage?”

And I would agree with Jack that one of the primary focuses is to come to some sort of predictability because all law enforcement people would like this and people on both sides of the fence.

And, it seems to me that if you say that we are going to create an exemption of the automobile exception or carve out an exception within him for luggage or repositories of private effects that you are engaging in a never ending battle, a never ending definition because what may be trash to me might be someone else’s luggage and you can battle this out forever.

Finally, I think, too, the one key thing to remember is the question that needs to be answered here was, “was this search of the suitcase reasonable under the circumstances?”

And, given the exigent circumstances which I had previously stated, which I’ve earnestly feel existed that justified the stopping, I think — with the expectation of privacy, I think it was only reasonable for those officers to open up that suitcase and look inside it.

Had they found nothing, obviously, Mr. Sanders and his defendant would have been allowed to go on their way and I think it is exactly this situation that this Court referred to in its opinion in Chambers that, given the valid auto exception, there is no constitutional difference.

In fact, it may very well be, the Court held implicitly, a lesser intrusion of the right of privacy to allow that immediate warrantless search on the scene as opposed to taking the individuals back and waiting several hours upon the obtaining of a warrant.

Potter Stewart:

Of course, the practical matter if there had been nothing incriminatory inside that suitcase, the respondents would have consented to the search and you wouldn’t have any exigent problem.

Joseph H. Purvis:

Certainly, which leads to another problem.

Potter Stewart:

And there wouldn’t have been any delay.

Joseph H. Purvis:

Which, leads to another problem too, and that is consent.

It is very easy to say “well, he could have consented to it.”

However, I’m sure Mr. Lassiter, as a trial lawyer, very well knows the problem of consent at the time of the search and proving consent at the time of trial or at the appellate level are two different things.

Very often, the Arkansas Supreme Court has rejected twice in the past three weeks consent searches where there was testimony of two officers and, indeed, a consent form signed where the lower Court found that there was valid consent, and the Arkansas Court held, well, because it was a situation where there were three officers in uniform with guns and one defendant or two defendants, there was the natural coercion there and we just cannot believe that this was a valid consent.

John Paul Stevens:

Was your Court unanimous in those cases?

Joseph H. Purvis:

Yes, sir, they were.

They — it was by a four-member panel, and all four members were unanimous.

We have filed petitions for rehearing.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.