California v. Acevedo - Oral Argument - January 08, 1991 Page 2

California v. Acevedo

Media for California v. Acevedo

Audio Transcription for Opinion Announcement - May 30, 1991 in California v. Acevedo

Audio Transcription for Oral Argument - January 08, 1991 in California v. Acevedo

Sandra Day O'Connor:

And could the sack then have been searched as a search incident to the arrest or an inventory search?

Robert Foster:

--Yes, Your Honor.

I believe either as a... as a search incident to the arrest... and as we point out in the brief, Your Honor, I think there's another way that it could have been searched, which is once he placed it into the vehicle, voluntarily and intentionally taking advantage of the mobility of the car, when he takes advantage of that aspect of the vehicle he has to take at the same time the limitations that come with it.

The limitations that come with it, this Court has clearly marked in Ross, Carroll, and Carney, which is a lesser expectation of privacy, because of the mobility of the vehicle.

So at that point the officers would probably--

Sandra Day O'Connor:

That's a little bit of a weak argument.

When you put something in the trunk of a car you don't really expect the world to be looking in and seeing what's there, do you?

Robert Foster:

--I don't think you expect the world to be looking in, but I think as this Court held in Ross, Your Honor, that whatever subjective expectation of privacy you have does not survive when the officers have probable cause to believe there are drugs in the vehicle.

I am sure when Mr. Ross in that case placed the bag of drugs and the pouch of money into the trunk he had the same subjective expectation as Mr. Acevedo.

In that sense the cases are very parallel, because both Mr. Ross and Mr. Acevedo placed bags of drugs into the trunk of their vehicles.

And in Ross this Court held that that subjective expectation of privacy was not objectively reasonable.

It did not survive in the face of probable cause.

I think the point is that he... that it was a voluntary and intentional act in his part in putting the bag into the vehicle.

And because of that he was seeking to exploit the mobility of the vehicle.

John Paul Stevens:

But, Mr. Foster, was it any different than the voluntary intentional act in Arkansas against Sanders?

Robert Foster:

No, Your Honor, but the difference--

John Paul Stevens:

So you basically want us to overrule Arkansas against Sanders?

Robert Foster:

--I want you to extremely limit Arkansas v. Sanders, yes, Your Honor.

I understand that there's an institutional bias to saying the word overrule.

And I think Arkansas v. Sanders would have validity as to luggage outside of the vehicle, but the main point--

John Paul Stevens:

Isn't it correct that in his separate opinion in that case that Chief Justice Burger made the very distinction that you're challenging here?

Robert Foster:

--Yes, Your Honor.

That is correct.

John Paul Stevens:

So you're basically challenging his analysis of the Fourth Amendment.

Robert Foster:

No, I thought I was supporting the Chief Justice's analysis--

John Paul Stevens:

I'm talking about Chief Justice Burger.

Robert Foster:

--Oh, I'm sorry.

Yes, I am challenging--

John Paul Stevens:

He's the source of the particular distinction that is at issue here.

Robert Foster:

--Yes, Your Honor.