Cardwell v. Lewis – Oral Argument – March 18, 1974

Media for Cardwell v. Lewis

Audio Transcription for Opinion Announcement – June 17, 1974 in Cardwell v. Lewis

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Warren E. Burger:

We’ll hear arguments next in 72-1603, Cardwell against Lewis.

Mr. Conway.

Leo J. Conway:

Mr. Chief Justice and may it please the Court.

We seek a review of the decision of the United States Court of Appeals for the Sixth Circuit which affirmed the judgment of the United States District Court for the Southern District of Ohio, Eastern Division, issuing a writ of habeas corpus effecting respondent’s release from the custody of the Ohio authorities pursuant to his having been convicted of the crime of murder in the first degree.

The basis for the finding that even though the arresting officers had reasonable grounds to believe that the evidence seized was and had in fact have been used in the commission of the crime itself, that they had had an ample opportunity to procure a warrant for the seizure of this automobile and, therefore, that the seizure of the automobile was per se unreasonable.

I should like, if I may, to describe the conditions leading up to the seizure of the automobile.

On July 19, 1967, a man with the name of Paul Radcliffe who was a Certified Public Accountant was brutally murdered.

Now, prior to his murder, he had been requested over a telephone to come to the City of Delaware, Ohio to seek or to give an interview pursuant to his having been or to his future employment as a CPA for this company.

At that same time, this anonymous caller who described himself as being officer of the IBEX (ph) Company asked Mr. Radcliffe if he would stop on the way in at a factory building which had been abandoned to look over the factory building to determine whether the company might use it in future expansion.

As he got out of his automobile at approximately quarter to nine on the morning of July 16 — July 19, he was greeted by three blasts from a shotgun which immediately took his life.

His body then was dragged over an embankment, his car was shoved over an embankment and later on because of the fortunate, and inadvertent really, inspection of the river by a game warden, the car was found.

The police were informed and after the police had been informed, they went out and found the body.

Now, immediately of course an investigation took place and a neighbor across the street had heard three shots, but had thought nothing about it because in this area, on numerous occasions the kids were hunting, shooting off guns, and it was rather common.

But shortly afterwards, she heard the screech of tires and gravel being thrown up in the fenders or underneath the fenders of the car, she went to the front door and, as she did, she observed a gold automobile which she describes as a 1967 or 1968 Oldsmobile accelerating towards Columbus.

Now, in the investigation that followed, the Delaware County authority discovered that Arthur Ben Lewis, the respondent herein, owned such an automobile.

They also learned that, in the process of their investigation, that he had looked at this building himself and was thoroughly familiar with it because he thought he might procure this building for the purpose setting up a club.

They also knew that he went by this building everyday of his summer occupancy practically because he had two swimming pools in the near vicinity.

They then found out that he had also been attempting to sell his — one of his business, of which he had many, to some people who had employed Radcliffe as an auditor to inspect the books of the company to determine whether in fact the company was sound.

A telephone call made to these people a half hour after the murder took place, after the shots have been fired which we assume was the time that the murder took place, the lady whose husband was buying the business received a call again from an individual saying that he was Paul Radcliffe, that he had examined the books of the company, that he was going out of town for a few days, and that the company was very sound and recommended that the purchase go through.

Now, based upon all of this knowledge on the part of the officers, a search warrant — an arrest warrant was procured for his arrest on October 20, 1967.

It goes without saying that at the time, although had this — they known that they were going to arrest him on this particular day that it might have been said that they could’ve gotten a search warrant, but for the automobile, which they knew by that time it had been used or they had every reason to believe it’d been used in pushing his car over the embankment and which had been damaged on the front end because there were paint — yellow or gold paint flakes on the back of the car that had been pushed over the embankment.

Potter Stewart:

Who issued the arrest warrant?

Leo J. Conway:

The arrest warrant was issued by the justice in Delaware County, Ohio wherein the crime was committed.

Potter Stewart:

And that was servable anywhere in the state, was it not?

Leo J. Conway:

That’s right.

The arrest warrant was servable anywhere in the State of Ohio, but —

Thurgood Marshall:

And the same judge could’ve issued the search warrant?

Leo J. Conway:

I beg your pardon?

Thurgood Marshall:

The same judge had authority to issue a search warrant?

Leo J. Conway:

The same judge had authority to issue a search warrant, Your Honor, but only for those things that they wanted to search in the County of Delaware.

Leo J. Conway:

In other words, in Ohio, a search warrant only may be served in the county wherein it was issued.

Potter Stewart:

Now, it was served you say by a — not a common police judge.

The warrant was not issued by —

Leo J. Conway:

By a municipal judge.

Potter Stewart:

By a municipal judge.

Leo J. Conway:

That’s right, Your Honor, but it wouldn’t have made any difference because had a common police judge of Delaware County issued a search warrant, it would’ve been invalid in Franklin County where the car or automobile was seized.

William J. Brennan, Jr.:

Did I understand that, at the time the arrest warrant was obtained, the authorities, at least some of the authorities, already knew that it was something involving the gold automobile?

Leo J. Conway:

That’s right, Your Honor.

William J. Brennan, Jr.:

Do they know — have they found the automobile that had been pushed over the embankment?

Leo J. Conway:

Well, that was found on the day of the crime, Your Honor.

The gold — the automobile that was initially pushed over, that was Paul Radcliffe’s automobile which had attempted to be concealed, had a gold paint scrapings on the back bottom it, that was found on the day of the murder itself.

William J. Brennan, Jr.:

Well, to get a warrant – the search — the seize and search of the gold automobile, to whom would the authorities have to apply to get that one?

Leo J. Conway:

Well, they would have had to apply to a justice in the county wherein they knew the automobile was.

William J. Brennan, Jr.:

And what county was that?

Leo J. Conway:

Ultimately, the car was seized in Jackson County — in Franklin County and —

William J. Brennan, Jr.:

Adjoining Delaware?

Leo J. Conway:

Immediately adjoining Delaware County.

William J. Brennan, Jr.:

Well, is there any reason why at the same time they went to a municipal judge to get the arrest warrant in Delaware?

They did not go to a municipal judge in Franklin to get a search warrant?

Leo J. Conway:

Yes, sir.

There is, Your Honor, because they didn’t know where the automobile was.

Now, in the State of Ohio, and I think this is generally true.

As a matter of fact, it’s required by the Constitution —

William J. Brennan, Jr.:

When did they find out where the automobile was?

Leo J. Conway:

At 5 o’clock in the afternoon of the — or 5 or 5:30, the record is not exactly clear, but it was on the late afternoon of the 20th day of October.

William J. Brennan, Jr.:

Following the arrest?

Leo J. Conway:

Following the arrest.

William J. Brennan, Jr.:

And was that the same day the — was the arrest the same day the arrest warrant was obtained?

Leo J. Conway:

That’s right.

William J. Brennan, Jr.:

And how did they find out?

Leo J. Conway:

At the time that he was arrested, Mr. Lewis took a ticket out of his pocket.

Now, there’s some argument as to exactly what happened but —

William J. Brennan, Jr.:

A parking ticket?

Leo J. Conway:

A parking ticket presumably —

William J. Brennan, Jr.:

For a parking lot?

Leo J. Conway:

That’s right, Your Honor and the parking lot was two doors from the Office of the Attorney General wherein the arrest was made.

And he said “here is my parking ticket.”

Now, there’s really no substantial difference as to the discovery of the parking ticket because at the time he pulled this out, he says that he gave it to his lawyer and says “you take my car and take it to my family.”

The officer say that he said “here — here is the ticket and you take my car and take care of it.”

This is one of the debatable things and, but the significant part is that they did not know where the automobile was until they saw the parking ticket and until he himself indicated its location.

William J. Brennan, Jr.:

Was there any reason once they got the parking ticket, whatever version was the correct, once they discovered where the automobile was, any reason they didn’t then go to a municipal judge in Jackson County and get a search warrant?

Leo J. Conway:

I think there was a very good reason, Your Honor.

As a matter of fact, they knew that Mr. Lewis had the front end of his car fixed attempting to conceal the fact that it was involved in a crime.

They also knew and he said “I want this car taken to my family.”

Now, if they had not seized it right then and it had been turned over to his family, they probably never would’ve seen the automobile again which they definitely wanted very badly as evidence in the murder trial.

Thurgood Marshall:

How far was the judge from the Attorney General’s Office?

Leo J. Conway:

Well, I would say within half a mile, Your Honor.

The Municipal Court is well within half a mile of the Attorney General’s Office where this happened.

Thurgood Marshall:

And there was a judge available.

Leo J. Conway:

I’m sure there would’ve been a judge available.

But had they gone and gotten the automobile — the search warrant and had not done what they did and that car had been driven away, it would’ve done them no good —

Thurgood Marshall:

They couldn’t have stopped the car from being driven away?

Leo J. Conway:

Well, certainly they can, Your Honor.

They could’ve put a policeman over or around the top of that automobile, and of course, it’s our contention then that had they did — had they so done, then they would’ve deprived this man of the possession of his car and —

Thurgood Marshall:

For about 15 minutes?

Leo J. Conway:

That’s right.

Thurgood Marshall:

And he could’ve sued for that again?

Leo J. Conway:

I think he could’ve.

Thurgood Marshall:

So that would be horrible.

That would be horrible, wouldn’t it?

Leo J. Conway:

Well —

Warren E. Burger:

Would you say that would constitute a seizure of the car at that time if they put four policemen hypothetically?

Leo J. Conway:

It is my contention, Your Honor, Mr. Chief Justice, that had they put a policeman on the car at that time to guard it against seizure that they, in effect, would’ve been seizing it right then.

William J. Brennan, Jr.:

Who had the parking ticket?

Leo J. Conway:

You mean at the time the car was seized?

William J. Brennan, Jr.:

Yes.

Leo J. Conway:

Well, it’d been turned over by the attorney to the arresting officer —

William J. Brennan, Jr.:

The police had it.

Leo J. Conway:

And they then–

William J. Brennan, Jr.:

I take it the keys are in the car, is that it?

Leo J. Conway:

There’s also some difference in that.

It’s contended that he also turned the keys over.

William J. Brennan, Jr.:

To the police?

Leo J. Conway:

To the police at the same time he returned the parking lot ticket over and as a matter of fact, that is actually —

William J. Brennan, Jr.:

Now, if that were true, who was going to drive it away?

Well, answer that later.

Warren E. Burger:

We’ll resume there after lunch.[Luncheon Recess]

You may continue, Mr. Conway.

Leo J. Conway:

Thank you.

Mr. Chief Justice and may it please the Court.

Just prior to the break, I was asked a question, I believe, who could’ve driven the car away when the keys were in the possession of the officers.

Of course, there are more than one set of keys to many cars and it is our contention that the family of the individual, Mr. Lewis, could’ve as easily gone in and taken the keys.

They would’ve had keys.

They could’ve driven the car away as well as by using those keys as the keys that the police may have had.

Thurgood Marshall:

Without the parking ticket?

Leo J. Conway:

Not without the parking ticket, but I was assuming of course that the keys and the parking ticket went together regardless.

Thurgood Marshall:

I thought you said the police had the parking ticket.

Leo J. Conway:

The police had the parking ticket.

And of course, that’s our point, Mr. Justice Marshall, that the police having had the parking ticket placed them in the same position as to take the car as it would had they put an officer on the car to guard it.

As an example, I think that the Court of Appeals and the District Court in this case based their entire decision on the Coolidge case that was decided by this Court and, which they indicated was on all force with Coolidge.

Leo J. Conway:

But as a matter of fact, there were no similarity between the facts in this case and Coolidge except that they indicated that they knew that they wanted — the officers in this case wanted the car prior to the time the arrest was made, the same as that in Coolidge.

But the difference was in Coolidge and in this case is, as in Coolidge the officers knew where the car was.

They knew its description and all they had to do, as the Court indicated, was to get a valid search warrant to go get the car.

In our case, the officers at the time that they made the arrest did not know where the car was and the only way that they could have gotten a search warrant and seized the car prior thereto would’ve perhaps warranted their entire investigation and this Court definitely has indicated that that was not necessary in the Harper case, in Harper v. United States.

The fact of the matter is that at the time that — the first time that the police knew where the car was, was right when the arrest took place or immediately thereafter.

Again, stressing the Ohio law, the — in Ohio, there’s no search warrant provided for an automobile.

A search warrant may only be issued for a home or place and an automobile, I think, would fit under the term “effects” as used in the constitution and if they want an effect, they want to seize or search an effect they must specificity indicate where that effect is before they can get a search warrant to search for it.

And as a matter of fact, since this is not a part of the record, but that’s the way it’s done today even though the police have searched, have seized an automobile in Columbus, Ohio and it’s in the police — they get the search warrant actually to search it.

And the place, of course, is of — the location is police power.

So they, in effect, are serving a search warrant upon themselves.

The other aspect of course of Coolidge that the court indicated or disagreed with, insofar as our argument was concerned, that there was no exigency.

And of course, that gets us back to the point that anybody in the family could’ve removed the automobile and hence deprived the state of the use of that automobile as evidence.

Now, we attempted in the court below to indicate or to base this search upon a valid arrest.

There isn’t any question in this case as to the validity of the arrest.

The District Judge, as a matter of fact, made a footnote indicating that the arrest warrant was not good in that it did not follow the federal requirements for arrest warrants.

But certainly, in the State of Ohio, that arrest warrant was perfectly valid.

In the State of Ohio, although the arresting officer must do over the — when — making the affidavit for the search warrant as to indicate that A, B killed C, D and that he has reasonable grounds to believe that he did and that’s exactly what the search warrant provided.

It is not required, under Ohio law, that he indicate how and where and who said and what have you like, as a matter of fact, it’s required him a search warrant.

Now, when the search — at the time that Mr. Lewis, having been arrested, pulled the parking ticket out of his pocket and said “this is the parking ticket to my car,” the police certainly had a right, in our opinion, to seize that parking ticket because they knew it was a parking ticket for the vehicle that they wanted as an instrumentality or as evidence in the crime.

And, therefore, they having had taken this parking ticket validly, they had to right, a continuing right to exercise jurisdiction over the automobile.

Incidentally, this was — this automobile was parked on a private parking lot.

And there was no reason that once that the police knew where the automobile was that they could’ve gone next door and taken some paint off of the automobile in itself.

It was in a private place — in a public place.

It was in plain view.

William H. Rehnquist:

Was the lot opened to the public?

Was it a typical parking lot you could just drive into and pay to park?

Leo J. Conway:

That’s right, Your Honor.

And —

Warren E. Burger:

Would that not be the equivalent of the seizure if they’d taken part of the car?

Leo J. Conway:

It is — I do not believe so, Your Honor.

Leo J. Conway:

I think —

Warren E. Burger:

Even a small part?

Leo J. Conway:

Even the —

Warren E. Burger:

Even the small part like the paint?

Leo J. Conway:

They would’ve been seizing something in plain view, it was our position.

Now, the court below disagreed with that theory because they said that they had to go down a couple of layers in order to do the real comparison, which I agree with.

I mean, they did have to go below the seeable part of the paint on the car in order to make the chemical analysis to determine whether or not the same paint or the same type of paint was — one comparable to the other.

But, nevertheless, I believe that assuming for the sake or argument that they admire the car, they might have actually been liable in the tort action for the scratching of the automobile.

But that did not, in any way, prevent them from taking what they believe to be a valid evidence to use in the murder itself.

When the motion to suppress was filed in this case in the trial court, the only precedent that the trial court had at that time was a recent precedent was, of course, Cooper and Preston.

And the Preston case, certainly, was very dissimilar to the case in this — in our situation for the simple reason that this Court held in Preston that the reason for which the car was seized had nothing whatsoever to do with the crime for which the defendant had been arrested.

But certainly in this case, there was every reason to believe that there was evidence of the crime itself and the police wanted it.

Now, the district — the trial judge relied strictly on Cooper in making its determination on a motion to suppress that the car was validly seized.

The court said, in Cooper, the Supreme Court observed that the car in that case was seized and impounded because of and in connection with the crime for which Cooper was arrested.

In this case, the car was seized, impounded and searched because of the crime for which the defendant was arrested.

And then, the court went on to say that it found that — and incidentally the court in that case did hold that they believe that the seizure of the parking ticket was, in effect, constructive seizure of the automobile.

But the court said further that this, in its opinion, rendered the seizure to have been in all respects reasonable.

The Supreme Court of Ohio likewise found the search to be reasonable and, I believe by the time it got to the Supreme Court of Ohio, this Court had decided Chambers v. Maroney which gave impetus, I believe, to the decision in Cooper.

Therefore, it was held that if these officers had a right to take that car initially as evidence in the crime on the parking lot that they had a right therefore to take it to the police impounding area and do such search as was necessary.

Now, at no time did they ever enter the inside of the car for any evidence that was subsequently disposed of in this case.

I should like to reserve a few minutes for —

Harry A. Blackmun:

General Conway, this case comes through some federal habeas, doesn’t it?

Leo J. Conway:

That’s right, Your Honor.

Harry A. Blackmun:

And I take it from your brief that you’re not questioning the integrity of Kaufman against the Untied States?

Leo J. Conway:

No, I’m not, Your Honor.

Warren E. Burger:

Mr. Frey.

Mr. Andrew L. Frey:

Mr. Chief Justice and may it please the Court.

The issue in this case is whether the Fourth Amendment was violated by the warrantless seizure of respondent’s car and the removal of a small paint sample from it which was subsequently introduced and evidenced against him at his murder trial.

Now, we have briefed this case and are arguing this case on the premise that there was indeed opportunity for the police to get a warrant and that there was no emergency or other justification for they’re not doing it in this case.

We’re advancing the contention that they were not required to get a warrant to do what they did in this case.

Mr. Andrew L. Frey:

Now, we’re dealing here as in almost every case in which the issue focuses on the warrant requirement.

With police action, that can’t be deemed unreasonable in the normal sense of the word, since if it were unreasonable in that sense, no warrant could issue to authorize the action that they did.

So, was it unreasonable here for the Ohio law enforcement officers knowing the facts that my colleague has just recited to you to believe that respondent’s automobile should be seized and examined for evidence that they had every expectation of finding and it would be highly probative at his anticipated murder trial?

Obviously not.

Similarly, was it unreasonable of them to remove a paint sample from respondent’s car to compare it with the foreign paint found on the car of the deceased?

Surely, a failure to pursue such a line of inquiry would’ve been not just unreasonable, but grounds for dismissal for gross incompetence.

So why, since respondent was constitutionally protected only from an unreasonable search or seizure, are we here today?

It’s because this Court has determined that, in many circumstances, the kind of reasonableness that I’ve been talking about is not enough. But there’s an overriding policy favoring antecedent judicial determinations of reasonableness and the issuance of warrants authorizing searches and seizures before certain kinds of police intrusions into the affairs of the citizen will be countenanced.

Now, in many cases, this policy has been expressed in terms of a per se rule of presumptive unreasonableness of warrantless seizures.

Accompanied, however, by a collection of exceptions, each of which has its own rational, but which, taken together, leave a substantial area of uncertainty today 185 years after the adoption of the Fourth Amendment about when a warrant is required.

We suggest that there is a sound underlying rational that runs through the Court’s efforts in this area that a meaningful understanding of the unifying principles is beclouded by thinking in terms of a pro se — per se warrant requirement with a — what I might call a procrustean hotel of exceptions.

This approach tends to lead the Court into the inquiry whether there was a reasonable opportunity to get a warrant rather than whether the search should be considered reasonable.

Although as the Court stated in Cooper against California, the latter is the constitutionally relevant standard.

Now, to identify this unifying rational one must ask, why would the court ever call a concededly reasonable search unreasonable because of the absence of a warrant?

It can only be because there are some circumstances in which it is simply not tolerable for the police to act without a prior evaluation of their reasons by a neutral and detached magistrate.

So, we urge the Court today to adopt the functional analysis of the warrant requirement.

The per se rule which says that the search is unreasonable without a warrant makes sense when we’re talking about searches of houses, as was eloquently stated in the Johnson and the McDonald cases.

It makes sense when we’re talking about intercepting conversations or intercepting mail where substantial privacy expectations are being defeated.

This point was emphasized in Katz.

Does it make sense, however, in the case of the automobile?

Now, I suggest that it is more than just a freakish coincidence that this Court has never, insofar as I’m aware, struck down a warrantless probable cause search of an automobile with the sole exception of the Coolidge case and in Coolidge, there was critical extra ingredient, the intrusion on to Mr. Coolidge’s private property.

Now, the reason for this goes back to the real values that underlie the Fourth Amendment protections which were stated by Justice Brennan in Warden against Hayden, page 304 of 387 U.S.

He said “the premise that property interest control the right of the Government to search and seize has been discredited.”

We have recognized that the principle object of the Fourth Amendment is the protection of privacy rather than property and have increasingly discarded fictional and procedural barriers rested on property considerations.

Accordingly, we submit that whether a search or seizure without a warrant should be held per se unreasonable depends on a determination of whether the privacy interest at stake is of such magnitude that the interposition of a neutral and detached magistrate should be required to make the probable cause determination.

Now, in approaching this analysis, I think the principal distinction that we would draw is the distinction between searches and seizures.

While like the admiral in HMS Pinafore, I’m not sure that I’m prepared to say never, I find it hard to imagine a situation in which a seizure, as such, should require a warrant if it is otherwise reasonable as distinct from a search because when we’re talking about a seizure, we’re talking about an invasion of the individual’s property interest only.

A search, on the other hand, does involve, almost by definition, some kind of intrusion into his privacy interest.

In the area of searches, therefore, I think the Court ought to weigh what privacy interests are at stake?

Are these privacy interest are such that in determining whether the search is reasonable under the first clause of the Fourth Amendment, the Court will impose the warrant requirements.

Mr. Andrew L. Frey:

Now, the per se approach, I think, leads to some —

William H. Rehnquist:

Mr. Frey.

Mr. Andrew L. Frey:

Yes?

William H. Rehnquist:

You’re talking in terms of privacy, but the Court in Katz did say that the Fourth Amendment can’t be translated into a general constitutional right to privacy, isn’t it?

Mr. Andrew L. Frey:

Well, but it recognized also in Katz that property interests too are protected by the Fourth Amendment.

I’m not — my argument is really addressed to the case as here where the infringement is on property interests of the citizen.

My suggestion is that while those property interests are protected by the Fourth Amendment, they are protected by the reasonableness requirement and they ought not — they don’t need the additional protection of the per se warrant rule which this Court has spoken about, but has frequently declined to apply in cases where it clearly seemed improper to deem a search unreasonable because there was no warrant.

Warren E. Burger:

I understand your privacy argument directed to distinguishing this case from Coolidge where in order to take the car in the Coolidge case, they had to invade at least the privacy of the man’s home and dwelling and garage and here, it was a private parking lot and no expectation of that kind of privacy?

Mr. Andrew L. Frey:

That is true, although I think our argument — that consideration is a consideration which distinguishes Coolidge from this case in two respects.

In Coolidge they intruded onto his private property, and in Coolidge they went into the body of his car to remove dust and sweepings from the floor of the car.

What I’m suggesting, however, is a general approach to this problem which has come up so many times and where it’s difficult to perceive a unifying threat of analysis.

And I’m suggesting that what early motivates the Court ordinarily is that they see in some instances the kind of intrusion into privacy as in Katz, which the Court is simply not prepared to allow the police to do just on the basis of their own reasons for doing so even if those reasons are subsequently found to have been sufficient.

Now, in the — in our brief we discussed the White case which the Sixth Circuit decided some months after they decided Cardwell.

Now, in the White case, the defendant have been arrested for passing counterfeit currency and they located his car which presumably, if in fact the reasons that they had to believe that he had used it to transport counterfeit currency were valid would be subject to forfeiture.

They went into the glove compartment of his car and they found there other counterfeit currency which was introduced in evidence against him at his trial.

Now the Court of Appeals, instead of looking at what it was that the police were doing and looking at what the privacy interests of the citizen were that were at stake as they did not do in the Cardwell case either, the Court of Appeals says “well, he went in for some purpose other than looking for evidence of a crime so that it’s alright for him to do the very same act.”

Now, I would suggest that, for instance, in Cady against Dombrowski where a somewhat similar rational was utilized that had they known that the gun or believed reasonably that the gun was used in a murder, that should not detract from the right from which this Court recognize them to have to go into the car without a warrant in order to seize the gun.

If it does, I think it inverts the — what seems to me to make sense or be reasonable in the sense that the term was used in the Fourth Amendment.

Now, I’d like to address a comment briefly to the Almeida-Sanchez case to Justice Powell’s concurring opinion in that case because there, there was a question of whether a search on less than probable cause might be deemed nevertheless reasonable.

And I think, there, the — it was the absence of probable cause which made it necessary to seek a warrant as a means in effect of reinforcing the reasonableness in the normal ordinary sense of the word for the police to make this intrusion on citizens driving along the road near the boarder.

Had there been probable cause, I don’t think the per se warrant requirement would’ve been necessary or properly applicable.

Now, we also mentioned in our brief some of the historical factors that are in the background and I think these are some of the same factors that Justice Douglas discussed in his dissenting opinion in Matlock, although we read them to have a different impact on this case.

Now, we recognize the Court is not bound strictly by the understanding of the framers in drafting the Fourth Amendment.

In some sense, the Constitution is a living instrument and we’re not suggesting that it should be narrowly constraint to 18th Century circumstances.

However, we think that it is clear that the concern was with the kind of invasion privacy that’s detailed in going into a dwelling that the general warrant concern was with going into the man’s house.

And we think that the statute of 1815, which was cited in the Carol case and which is one illustration of early congressional understanding of the restriction on searches and seizures is very significant.

This was a statute which permitted custom’s search that’s not just at the border, but any place within the custom’s district and had made a distinction between going into a house and searching a vehicle or vessel or beast.

In the latter case, not only did it provide that search could be made on mere suspicion and, as distinct from the warrant requirement for searching in a house, but it had a proviso which Chief Justice Taft did not quote in the Carol opinion but which we think is significant.

It’s quoted at page 27 of our brief and it said “provided always that the necessity of a search warrant arising under this Act shall, in no case, be considered as applicable to any carriage, wagon, cart, sleigh, vessel, boat, or other vehicle of whatever form of construction employed as a medium of transportation or the packages on any animal or animals or carried by man or on foot.”

And that statute was signed into law by the Father of the Fourth Amendment, James Madison.

Mr. Andrew L. Frey:

And, I think it sheds some significant light on the understanding of the framers with regard to the Fourth Amendment.

So, to sum up, we suggest that in this case the seizure of the car and the removal of a piece of paint from the car constituted seizures and not searches and that the Court should recognize, as we think sound analysis compels, that a seizure does not, ordinarily barring some exceptional circumstances not present here, have to require the antecedent justification of a warrant in order to be reasonable, but rather its reasonableness can be assessed on the basis of what the police officers knew, what justification they had for going and doing what they did.

In this case, we submit that they had every justification for doing it.

If there are no questions?

Thank you.

Warren E. Burger:

Very well, Mr. Frey.

Mr. Campbell.

Bruce A. Campbell:

Mr. Chief Justice and may it please the Court.

As I read the briefs of the petitioner in this case and of the Solicitor General and as I listen to the oral arguments of my brothers Mr. Frey and Mr. Conway, I am struck repeatedly by the aptness of the observation of Mr. Justice Frankfurter in his dissent in Rabinowitz.

And I paraphrase to some extent here that, “where one comes out on a case depends very much on where one goes in.

And that it makes all the difference in the world whether one approaches the Fourth Amendment as a safeguard against recurrent abuses or merely as a provision dealing with a formality.”

It seemed to me that both the petitioner and the amicus in this case seem to take as granted that it is somehow automatically desirable that, as many areas as possible to be excised from Fourth Amendment protection and that police action wherever possible be taken out from under the coverage of that amendment.

And they do that in this case without devoting in their briefs or in their oral argument a single word as to why there was, under the facts of this case, a specific burden upon law enforcement a specific risk to be taken by the procuring of a warrant in this case.

And they also do this it seems to me, without stopping to consider the potentiality for executive abuse that is inherent in the positions which they urge.

Respondent, of course, approaches this case from the perspective of the very fundamental nature of the Fourth Amendment.

I would like before I begin to clear up, I think, some factual difficulties that have arisen from oral argument.

Mr. Conway, I think, has supplied some details of the murder itself which are at least speculative in the record and I think that there are some other inaccuracies that should be corrected.

First of all, it is claimed that the witness at the — near the murder scene who saw the departing automobile claimed it to have been a gold ‘67 or ‘68 Oldsmobile.

In fact, she said that it was tan or beige car that it was of a make similar to her own Corvette but she was not aware of what specific brand of car it was.

Secondly, with regard to the phone call that was received by the wife of the person who was purchasing the business, Mr. Smith, who had hired the decedent, Mr. Radcliffe, to examine the books.

The record of the case will disclose that the caller, whoever that caller may have been, did not specifically say “I have examined the books of Grahams Auto Parts,” which was the name of the business that the defendant was attempting to sell to Mr. Smith.

It merely said — that witness at the trial merely claimed that the caller said “I have examined the books and they are in a one shape.”

Now, it is also fact in the record that the accountant was the general accountant for Mr. Smith, not just the accountant for the specific purpose of this particular transaction.

So, I think that the state has inferred more than it should from that telephone call.

And one final matter; it has been suggested that the person searching the car on the day it was seized did not intrude upon the interior of that car.

In fact, he did, he opened the trunk of that car and looked in and observed a nearly new tire and he testified about this at trial.

Now, the reason that that has not been emphasized in this appeal or throughout the course of this case is that there was other testimony concerning the tires, whereas, the only testimony concerning the paint came as the result of the taking of the paint from the automobile at the time of the search.

It seems to me that we have, here, essentially two distinct characterizations of the case.

The State of Ohio says that this was a case in which almost all of the traditional exceptions to the warrant requirement were present.

They claim consent.

Bruce A. Campbell:

They claim that there was incidency to the arrest.

They claim that there was urgency of circumstance that necessitated a warrantless seizure.

The Solicitor General takes quite a different view.

He says he explicitly denies that there were exigent circumstances here and he tacitly seems to concede that there was no consent and no incidency to the arrest.

But he argues that one has less than a full-fledged Fourth Amendment interest in his automobile and that the scraping of the paint in this case was not a seizure as such.

With respect to probable cause, there seems also to be a disagreement.

The Solicitor General has urged unquestionably that there was probable cause, although he does not explain this at any point.

The State of Ohio seems to be in doubt.

In its own conclusion, at page 35 of its brief it states that while the authorities in our case had information relating to the car prior to the seizure, there is no indication that such information amounted to probable cause to obtain a warrant.

I propose to examine in turn, first, the more traditional exceptions to the warrant requirement that are raised primarily by the state, specifically consent search incident and exigent circumstances.

And then, move to what I perceive to be the more novel exception which the state indirectly and the Solicitor General more specifically has asked this Court to countenance.

With respect to the issue of consent in this case, I would first point out to the Court that that issue is, at best, clouded upon the record.

There are essentially two versions of what happened on October 10, 1967 which was the day when the defendant was asked to come to the Office of the Attorney General.

He appeared, he was questioned throughout the day despite the fact that the officers already at that time had an arrest warrant for first-degree murder for him.

A tape recording was made of that interrogation session, and I’ll refer to that later.

The respondent says that, at that time, the — that he attempted only to turnover the keys and the claim check of his automobile to his attorney, Mr. Scott and this is verified by his two attorneys, Mr. Tingly who’s the first attorney and Mr. Scott as well.

Mr. Tingly testified in a motion to suppress hearing prior to the trial, and Mr. Scott testified in the evidentiary hearing in the District Court.

Now, the investigating officials here claim that what happened was that the defendant made a request that his car be kept for “safekeeping,” but Mr. — Sergeant Lavery himself conceded that this request made to no one in particular.

That may be found on page 58a of the Appendix and he seems that — Sergeant Lavery seems also to be at least confused as to when exactly this occurred.

At a pretrial motion to suppress, he thought that it was probably before the defendant’s counsel had arrived at the Office of the Attorney General.

Subsequently, at the evidentiary hearing, he seemed to be sure that it was after counsel had arrived.

Now, the District Court examined at some length, I think, all of the facts surrounding this alleged consent and determined that even if it took these facts in the light most favorable to the state, which it was not required to do even under that construction, there was not sufficient consent to allow the taking of the automobile here.

The state courts did not find consent either.

The trial court rested its decision on a search incident theory.

The Ohio Supreme Court went off on what could only be described as an instrumentality of the crime theory, interestingly enough, never even citing Warden versus Hayden which had been decided some two years prior to that.

The burden of proving consent here was clearly on the state, as this Court has said repeatedly and most recently in the Schneckloth decision and in the Matlock decision.

It seems to me that to imply a full waiver of Fourth Amendment constitutional rights from what, at most, coul be characterized as an expression of concern about one’s property would be the ultimate paradox.

If it is a desirable goal to foster citizen cooperation with investigation — with law investigation, and Mr. Lewis in this case was most cooperative, it hardly seems to be in furtherance of that goal to allow sweeping interpretations to be made of a simple request of the nature of the warrant here.

Now, perhaps, one —

Potter Stewart:

Mr. Campbell, do you understand that, here, in this argument in this Court, that either Mr. Conway or Mr. Frey are relying on consent?

Potter Stewart:

Is there a theory that this is a —

Bruce A. Campbell:

Well, Your Honor, in the brief for the State of Ohio, consent is raised at least in the way that the state presents its case.

And consent is raised in another way by the Solicitor General.

He proposes that though there may not have been enough consent here for a seizure of the automobile, there was somehow enough consent that the automobile could be taken into custody and then searched.

I submit —

Potter Stewart:

I perhaps missed it.

I misunderstood it.

I didn’t understand that they — there’s any reliance on consent as such here in this Court?

Bruce A. Campbell:

I think in the case of the —

Potter Stewart:

The holding is against him in both of the Federal Courts.

Bruce A. Campbell:

Yes, it is, Your Honor.

Potter Stewart:

I didn’t understand that that was being attacked?

Bruce A. Campbell:

I think in the case of the Solicitor General’s brief that it is something of an argument in passing, but he does raise the possibility that there may have been sufficient consent here to merit a taking into custody and then he argues from that that what followed was not really a search at all and that it was justified very much in the line that this Court justified Cooper.

I submit that this is pure sophistry, that consent to search is certainly no different than consent to take into custody.

Now, with respect to the incidence to arrest, the petitioner here proposes a nexus between the arrest and car seizure based not upon the physical proximity of the defendant and his automobile, but rather upon his possession at the moment of arrest of a parking lot claim check for the car and perhaps the keys.

I should point out that there is a dispute in the record as to whether Mr. Lewis had the keys at the time of the arrest or not.

Mr. Lewis says that he did. Other witnesses said only the claim check was apparently turned over and it may have been a parking lot where the keys were kept at the parking lot.

Warren E. Burger:

Would it make any difference to our questions here, do you think?

Bruce A. Campbell:

None, Your Honor, from my point of view.

In effect, I think the petitioner is urging a Doctrine of Constructive Possession whereby what one has on his possession, if it is a part of or a means of access to, some other object, will allow the state then to seize that other object no matter where it may be.

I believe this to be an absurd extension of the Search Incidency Doctrine and that it is founded upon no prior case law.

It seemed to me, as the District Court held, that incidency in this case must be judged upon (Inaudible) standards that Rabinowitz is probably the controlling case, but even in Rabinowitz the court held that — held only that a tiny office in which the defendant was arrested and which was under his immediate and complete control could be searched.

The Preston case which, again, was decided before the facts of this case, this case occurred, involved an automobile on the street and, in that case, the Court said that once an accused is under arrest and in custody, then a search made at another place without a warrant is simply not incident to the arrest.

Potter Stewart:

Mr. Campbell, how about the — and maybe there have been cases of this kind, I don’t have any in mind.

Let’s assume a constitutionally valid arrest and, therefore, a — the search incident there, too, was a constitutionally valid search.

Assume further that in the process of that search, there was found in the pocket of the arrestee a key with a number on it to a locker down at the Union Station.

The police have to get a search warrant to search the locker or may they simply use the key and go down to the Union Station and open up the locker?

Are there any cases to that kind?

Bruce A. Campbell:

I’m not aware of any, Your Honor.

Potter Stewart:

Not either.

Bruce A. Campbell:

I believe that that case would be precisely the same as this case.

Potter Stewart:

It would be very close in that.

Bruce A. Campbell:

The warrant would be required.

Potter Stewart:

Analytically, anyway, wouldn’t it?

Bruce A. Campbell:

I would think so.

Potter Stewart:

And why if the police had the key perfectly lawfully, as by the hypothesis of my hypothetical question they do, why they can’t they simply use the key?

Bruce A. Campbell:

Because the key does not subsume the identity of the object to which it admits one.

I might have in my possession the combination to a safe.

I do not believe that that means that that safe, if it can be located, can be opened merely because I had a list of numbers in my pocket.

There is nothing about the key in the example that you pose that takes over the identity of the object that is later searched and seized.

Warren E. Burger:

Let me give you a slight variation of Justice Stewart’s hypothetical.

Instead of a key to locker at a train station or airport or some such place, they found a pawnshop ticket dated two days before the time of the interview.

And the pawnshop ticket showed that a pistol had been pawned and police were involved in trying to check out pistols and ballistic tests.

You think the police with that pawnshop ticket could go to the pawnshop without a warrant or would they have to have a warrant to go and get that gun to test it for ballistics?

Bruce A. Campbell:

I believe that they would have to have a warrant, Your Honor, under the same rational.

Warren E. Burger:

You really got to take that position or abandon your own —

Bruce A. Campbell:

Yes.

Warren E. Burger:

— don’t you?

Bruce A. Campbell:

And I do take that position.

William J. Brennan, Jr.:

Well, I take it if you didn’t take that position you’d have some difficulty distinguishing in this very case, if he had a key ring and on that ring were not only the keys to the car, but the keys to his house.

If they can go get or use the key to the car, I take it that if you agree to that, you would also agree, would you, I take it also use the key to the house?

Bruce A. Campbell:

I would think if the Court were to hold that the seizure of the car key was tantamount to the seizure of the car itself, then the logical extension of that would be that the seizure of the house key was indeed the seizure of the house.

Warren E. Burger:

The courts made some distinctions between automobiles and homes, has it not?

Bruce A. Campbell:

It has, Your Honor.

Warren E. Burger:

But not between keys?

Bruce A. Campbell:

No.

Thurgood Marshall:

Mr. Campbell, as I understand the position, if he’d driven that car and left it outside the Attorney General’s Office parking lot, could they stay to have chipped a piece of that paint off and test it?

Bruce A. Campbell:

At the parking lot, Your Honor?

Thurgood Marshall:

No, sir, in the street right in front of the Attorney General’s Office?

Bruce A. Campbell:

Your Honor, I would make no distinction in this case between the parking on a commercial parking lot and the parking in any area that is legally designated for the parking of an automobile.

Bruce A. Campbell:

I don’t think that this case turns upon the private nature of the parking lot.

Thurgood Marshall:

Well, is it the private nature of the car?

Bruce A. Campbell:

Yes, Your Honor, as long as that car —

Thurgood Marshall:

But this was the bumper.

They didn’t go — assuming they didn’t go into the car at all, assuming they didn’t have the key.

All they knew was this was the car and they want to get a piece of that paint off of the front of it.

So, they knocked the piece of the paint off.

What’s wrong with that?

Bruce A. Campbell:

The thing that’s wrong with that, Your Honor, is that, in my view it is a seizure and, as such, it should have been justified by a warrant if indeed there was time to get a warrant.

Thurgood Marshall:

Well, that would go for things in plain view?

Bruce A. Campbell:

No, Your Honor, I do not —

Thurgood Marshall:

Well, suppose laying on the front of the bumper was a can of paint, could you seize that?

Bruce A. Campbell:

Quite possibly, yes.

Thurgood Marshall:

But once you touch the bumper, you get in trouble?

Bruce A. Campbell:

Well, the can of paint, I would take it, would not be an integral part of the car itself and not —

Thurgood Marshall:

I understand that Solicitor General’s position is that the car, there’s no question of going into or violating anything to just chip a piece of paint off of the outside of the car?

Bruce A. Campbell:

That seems to be his position.

I disagree with that position.

Thurgood Marshall:

Well, I wonder if you could take it a little further.

Suppose you’d go up to the man’s house and chip a piece of paint off of the outside door.

Will you need a search warrant?

Bruce A. Campbell:

Absolutely, Your Honor.

Thurgood Marshall:

Why?

Bruce A. Campbell:

Because it is an integral part of that house.

It is not something in plain view.

Thurgood Marshall:

Well, there is no search involved, is there?

Bruce A. Campbell:

There is at the point after the seizure.

Once the paint is seized, it is then examined, and that becomes the search.

Thurgood Marshall:

Oh!

Bruce A. Campbell:

I do not believe that any of the cases cited by the petitioner are helpful here.

Bruce A. Campbell:

Chambers versus Maroney merely said that where the antecedent seizure at the site of the arrest would validate a search, it is not unreasonable to move the car to a safe place.

But here, unlike Chambers, we did not have a vehicle stopped on the open road.

We had not need to divert man power from the arrest function to the search function.

And here, the search, in any event, was not completed as was the search in Chambers versus Maroney as soon as it was reasonably practical. Neither are the Robinson and Gustafson case, cases recently decided by this Court, helpful here because, in those cases, the court dealt with a very direct physical relationship between the one arrested and the object on his person.

The defendant in this case was at some considerable distance from his car at the time of arrest.

He had been out of his car for at least seven hours by the time of the arrest.

He had no means of getting to it and, during the day, he was held in closed confinement.

Warren E. Burger:

If after they got the keys and the ticket to the parking lot so that the police had access, they had then placed four policemen over on the parking lot with orders to the parking lot attendant not to permit anyone to take that car away and informing the attendant that they were there to enforce that direction.

Then — meanwhile, proceeded to get a warrant. Would you think a seizure would’ve occurred when they put the guard on the car?

Bruce A. Campbell:

Your Honor, first, let me say that I do not believe that was required in this case.

But if it had been, I do not believe that would have constituted a full seizure of the car.

I realize that there is a problem here, and it is a problem which the Court wrestled with in Chambers versus Maroney.

But it seems to me, that the Court should examine, perhaps, the possibility that that lesser intrusion may solve some very difficult search problems in this area.

I am aware that guard-posting is a theory that this Court has not generally countenanced, although I think recently in the Cady versus Dombrowski case there was some suggestion that perhaps what might be reasonable in a metropolitan jurisdiction where the magistrate is readily available and there are other police officers on the scene might not be reasonable in a rural setting.

Here, I think, we had a very good case for guard-posting if it were necessary.

But as I say, it was not necessary in this case.

The car was effectively immobilized.

This, I think, brings me to the —

Warren E. Burger:

Well, to make that analysis, if I may interrupt you a moment more, to make that analysis that you’ve just made you must confront the situation that while the four policemen were standing guard on the car on this restriction on its movement, some member of the family or some other person came to the parking lot with a set of keys, made claim to the car and sought to take it away.

In which case, obviously, the only purpose of having a police guard there would be to prevent it.

With that confrontation, would you have a seizure?

Bruce A. Campbell:

No, Your Honor, I do not believe —

Warren E. Burger:

The police refuse to let the man’s wife take the car away, let us say, or his lawyer?

Bruce A. Campbell:

I believe that it is possible to distinguish that kind of temporary keeping for a reasonable time while a warrant is sought from a seizure itself and I believe that that kind of distinction might be helpful in another case, but I don’t believe that it was the reality of this case and necessary here.

Petitioner has also claimed exigency of circumstance or urgency, here, necessitating the warrantless seizure of this automobile.

He rests his claim, I think, on three assumptions.

First of all, that the investigators did not know where the car was.

Second, that confederates may have absconded with the car.

And finally, that probable cause, if it existed at all, did not come into being until the moment of arrest.

I’d like to take each one of these claims in turn, if I may.

Bruce A. Campbell:

As to the whereabouts of the car, there is absolutely no indication in the record in this case that the state did not know at many times throughout this investigation where the car was.

In fact, they had very specific knowledge about the car and had seen the car 78 days prior to October 10.

They went to the defendant’s place of business.

They asked him where his car was.

It was in the parking lot.

He pointed it to them — pointed it out to them.

They had an opportunity to note its color and did, in fact, at that moment, begin to consider him as a suspect because the color of the car matched the one that they already were looking for.

Now, it seems to me that any doubt that the Court might have about the specificity of the information which the state had by the time of October 10 concerning the defendant, his car, his home, his general whereabouts, his businesses, his financial condition can easily be dispelled by reading in the Bill of Exceptions, the transcription of the interrogation session which took place on October 10.

You will remember that I pointed out to the Court that a tape recording was made unknown to the defendant of that interrogation session.

In the trial of the case, the state attempted to, first, introduce this transcript into the record.

This was objected to and the objection was sustained, but then, the trial judge allowed one of the states’ witnesses, Mr. Mann, to read verbatim into the record the record of that transcription of the interrogation session and that may be found on page 485 to 568 of the Bill of Exceptions.

Throughout that interrogation session, it is clear that they had very specific knowledge about where Mr. Lewis had been, who he had talked to, where his car was, where his home was.

William H. Rehnquist:

Mr. Campbell, Mr. Lewis live in Franklin County?

Bruce A. Campbell:

Your Honor, it is not clear to me whether his home was in Franklin County or Delaware County.

He moved between the two frequently, and I —

William H. Rehnquist:

And the record just doesn’t show.

Bruce A. Campbell:

If it does, I’m sorry.

I don’t know for sure.

There is talk in the record that I just told you about as to where — there is a dialogue between the investigator and Mr. Lewis about his home, but I do not believe it says where he lived.

As in the side, I would point out to the Court that the record of that interrogation is instructive in its own right of why, as the Court has said from time to time, zealous officers engaged in the enterprise of ferreting out crime should not be allowed to make ad hoc judgments about probable cause matters.

That was a brutal interrogation session, not in a physical sense but in a mental sense.

During the course of that interrogation, the state repeatedly tried to get the defendant to take a lie detector test although, at the very first instance, the defendant said he would not even consider it without talking to counsel.

And in another place in the record of that interrogation, the interrogator attempts to help Mr. Lewis fabricate a non-premeditative version of the facts of this killing in order that he might not have to charge him with first-degree murder, not telling him that a first-degree murder warrant was already in existence.

Now, with respect to the assumption that there was a confederate in this crime, I should point out that there is no testimony in the record that shows that there ever was an accomplice, that the state ever believed that there was an accomplice, that the defendant’s family was in any way in league with the defendant or would have removed the car.

And as to Mr. Scott, the attorney, it seems to me that once Mr. Scott turned over the claim check and perhaps the keys to the police that, at that point in time, he indicated that he was not going to run a footrace with the investigators down to the car and he indicated that he was not going to take the car.

They had no reason to believe that that car would be taken out of the jurisdiction.

Now, the final assumption, I think, is — deals with the question of probable cause.

Now, the state claims here that there may not have been probable cause up to October 10 to get a search warrant for the automobile.

But then, it seems to claim that somehow during the day something developed that made the probable cause argument and made the seizure possible.

But the only fact that they’ve suggested that has emerged during that interrogation on October 10 was the fact that the defendant gave a slightly different version of why he had had his car repaired than he did when he had it repaired.

Bruce A. Campbell:

Now, there is no showing by the petitioner why this tiny fact, added to the others that the police had, somehow became the sine qua non of probable cause.

Potter Stewart:

Mr. Lewis was there in the office of the special branch of the Attorney General’s Office most of the day, wasn’t he?

Bruce A. Campbell:

He was there from 10 o’clock in the morning until arrested at 5:30 with the exception of a brief period when he left in the company of the officers and went to his home and with his own consent, he searched his house for —

Potter Stewart:

That was back in Delaware County which is a contiguous county?

Bruce A. Campbell:

Well, Your Honor, I still don’t know precisely whether the house was in Delaware County or Franklin County.

Potter Stewart:

I see, but —

Bruce A. Campbell:

Mr. Conway —

Potter Stewart:

— in any event, for six or seven hours, is there anything that we know as to what occurred during that long period of time?

Bruce A. Campbell:

Well, Your Honor, other than the transcript that we have of that interrogation, no or do I understand your question correctly?

Potter Stewart:

Well, what — do we have a transcript of what occurred there for that whole period from 10:00 a.m. until 5:30 p.m. —

Bruce A. Campbell:

We have a trans–

Potter Stewart:

— with the exception of that period that he went back to his house?

Bruce A. Campbell:

We have what the state has claimed to be an accurate transcript of the questioning that took place starting about 10:30 until about 3:00 in the afternoon when — or 3:30 in the afternoon, when Mr. Lewis finally said that “I want a lawyer.”

And at that point, questioning apparently was broken off and that’s the end of the transcript.

Potter Stewart:

And you’re just starting to tell us now that nothing emerged from that interrogation or that discussion that was any different with the exception of one minor change in his version of something.

Is that it?

Bruce A. Campbell:

The only — yes, that’s the only thing that emerged during that.

And it’s interesting to point out that that emerged quite early in the record of that interrogation, probably early in the morning, so that they had at least the afternoon to obtain a warrant.

Turning, if I may, to the question raised by the amicus in this case, it would seem to argue to this Court that somehow an individual’s privacy interest in his automobile, at least when it’s not parked at home, is not of sufficient intensity to necessitate full invocation of the Fourth Amendment.

I would, first, examine the assumption that he makes that individuals do not expect in an automobile the same kind of security interest that they do in other objects of their life.

Certainly, there is no basis in the Fourth Amendment to differentiate between an automobile and other effects.

The Solicitor General cites no empirical data suggesting that Americans do not expect a privacy interest in their automobiles.

And, the only case law which he cites is a 52-year-old Michigan case dealing with a car that was found upon fairgrounds.

I submit that the assumption that, in 1974, we do not expect the same privacy interest with respect to our automobiles that we do with respect to other accouterments of our life is simply unfounded.

It might be or it might have been a valid assumption in a more pastoral age when people led a self-contained existence on their own homestead.

But today, if anything, the automobile, for better or worse, has become the very focus of modern society.

A man’s home very often is a series of rented apartments, motel rooms, even in a growing number of cases, the vehicle itself.

And to a very high proportion of our citizens, it seems to me that an automobile may well be a person’s most tangible domain.

William H. Rehnquist:

Mr. Campbell, I suppose you would concede that a number of cases of this Court, Carol and Chambers and Cady, have said that a car is quite different for a Fourth Amendment purposes than a man’s home.

Bruce A. Campbell:

I do, Your Honor.

William H. Rehnquist:

That doesn’t, I realize, answer the question you’re addressing yourself to, whether conceding that difference, it still has Fourth Amendment protection.

Bruce A. Campbell:

Well, I think the difference is that whether you start at the outset and say automobiles are to be set apart under the Fourth Amendment or whether you say that they are included in Fourth Amendment coverage, but the way in which we deal with them may have to be different based on their mobility.

William H. Rehnquist:

Would you say a motorcycle is tantamount to a car for purposes of your argument?

Bruce A. Campbell:

Yes, I would.

William H. Rehnquist:

How about a bicycle?

Bruce A. Campbell:

Yes, sir.

I would submit that the observations that I’ve made about automobiles are not merely abstract generalization, but relates specifically to this case because there is evidence in the trial record to the effect that Mr. Lewis, because he had three businesses and taught, virtually lived in his automobile and that may be found in Bill of Exceptions, page 889.

I submit that —

Potter Stewart:

Well, that would be an interesting analogy if this were a search inside the automobile, but this is not quite that and the Government makes a good deal of that and, I guess, Mr. Conway does too.

There is no entry to the automobile?

Bruce A. Campbell:

Well, Your Honor, there were —

Potter Stewart:

If you are analogizing it to a dwelling and —

Bruce A. Campbell:

There was, Your Honor–

Potter Stewart:

There was no entry into it.

It was simply scraping something off of the bumper or the front fender, or whatever it was.

Bruce A. Campbell:

Well, I would take the position that scraping is an entry into the automobile and, also, I would point out —

Potter Stewart:

Well, he didn’t live — he may have lived in his automobile, but he didn’t live sitting on the bumper, that’s the point?

Bruce A. Campbell:

I grant you that, Your Honor.

I submit —

Thurgood Marshall:

How much of clothing did you find in the car?

Bruce A. Campbell:

I beg your pardon, Your Honor?

Thurgood Marshall:

They didn’t find any clothing in the car.

Did they find a toothbrush in there?

Bruce A. Campbell:

No, Your Honor.

Thurgood Marshall:

Well, where do you get this living in the car business?

Bruce A. Campbell:

Well —

Thurgood Marshall:

You pulled that right out of the sky, didn’t you?

Bruce A. Campbell:

No, Your Honor, I don’t think so.

He specifically — I think his exact words in the transcript were that he lived in his automobile a lot.

By that, he meant that he was constantly going from one occupation to another and he spent a great deal of time in his automobile.

Bruce A. Campbell:

I submit that the only logical and adaptable concept to the Fourth Amendment is that it be held to protect one’s sphere of existence, whatever that may in an individual case may be.

I think this is precisely the approach that the Court has taken.

In Terry, the Court pointed to the fact that the inestimable right of personal security belongs as much to the citizens on the street as to the homeowner closeted in his study to dispose of his secret affairs.

I think that the Katz case is yet another example where this Court has dealt not with a proprietary interest, but in an interest in one’s sphere of existence.

Here, Lewis did seek privacy in his automobile, as evidenced by the fact that he put his car into a commercial parking lot to make it safe from the vulnerability of public areas.

He did not abandon his car in a way that the defendant did in Cady versus Dombrowski.

But even if you grant the amicus — the assumption that there is somehow some inherent inferiority in an automobile, the result which he projects from that, it seems to me, is mystifying.

He suggests that since we have declared automobiles to be second class effects under the Fourth Amendment, that what we ought to do is give them a part of the Fourth Amendment and he arbitrarily picks, I think, the first part, the reasonableness clause and he proposes to substitute a policeman’s ad hoc judgment for the second, the warrant requirement.

He seems to see this as a way of balancing interests, but yet, he never once points to interest, the police interest that needs to be balanced.

Respondent would submit that there is no need for and much mischief to be expected from this kind of concept.

It seems to me that if there is to be a choice or if there is a choice between perspective and retrospective judicial determinations of probable cause, it should be made in favor of prospective probable cause in determinations, not only because the constitution dictates it, but because good sense does as well.

I would suggest that —

Potter Stewart:

I don’t quite understand what you mean by prospective or retrospective probable cause?

Bruce A. Campbell:

Well, I’m speaking of going to a magistrate in the first instance and securing a warrant as opposed to going ahead, making the search, and then later in court justifying the probable cause.

Potter Stewart:

I see.

Lewis F. Powell, Jr.:

Mr. Campbell, may I ask you a very different question before you sit down.

Bruce A. Campbell:

Yes, Your Honor.

Lewis F. Powell, Jr.:

There’s no question in this case, is there, that the Fourth Amendment issue that you’ve been arguing was considered at every stage of the State Court proceedings?

Bruce A. Campbell:

There is no question of that, Your Honor.

Lewis F. Powell, Jr.:

And those proceedings included the Trial Court and the Intermediate Appellate Court and the Supreme Court of Ohio?

Bruce A. Campbell:

That is correct, Your Honor.

Lewis F. Powell, Jr.:

A single Federal District Judge just set all of that aside?

Bruce A. Campbell:

He has on the basis, Your Honor, that those courts improperly applied —

Lewis F. Powell, Jr.:

I understand what basis is.

Bruce A. Campbell:

The constitutional principles involved.

In conclusion, I would say that I do not suggest here that the positions urged by the state, by the Solicitor General and by the last rights in the Fourth Amendment.

But they do, as excursions from the general thrust of that basic guarantee always to heighten the potential for abuse of a citizen by his Government.

In some instances that risk may be worth the taking.

But here, it was not necessary and it is not worth the taking.

And I would urge the affirmance of the decisions below.

Warren E. Burger:

Thank you, Mr. Campbell.

Do you have anything further, Mr. Frey?

You have about four minutes left.

Mr. Andrew L. Frey:

Thank you, Mr. Chief Justice.

First of all, a couple of factual matters with respect to the question of when they knew that the car was parked on the lot.

At page 61a of the Appendix there is testimony by the witness that they did not know during the day that the parked on that particular lot.

Warren E. Burger:

When did — are you going to suggest, when they did —

Mr. Andrew L. Frey:

I think they learned of it at the time that the arrest took place and they obtained the claim check for that parking lot.

Thurgood Marshall:

They could’ve asked.

Mr. Andrew L. Frey:

They could’ve asked.

Thurgood Marshall:

At 10 o’clock.

Mr. Andrew L. Frey:

They could’ve asked at 10 o’clock yes.

Also, apparently, it was stipulated by Mr. Scott, Lewis’ attorney, that the testimony of Clyde Mann was supported by the full transcript of the tape proceedings which he had been furnished by the prosecutor.

Now, the consent argument which was discussed, our argument on the consent issue is that the District Court never resolved the question of whether Mr. Lewis consented to the seizure of his automobile because the District Court held that it was not relevant since he did not consent to the search and the District Court found that the taking of the paint samples was a search.

In our brief, I think at page 20, we make the point that if the Court finds that the taking of the paint samples was not a search, then assuming even that the Court held that a warrant would be required for the seizure there appears to be a factual issue left unresolved by the District Court here as to whether there was consent to the seizure as distinct from the search.

William J. Brennan, Jr.:

Is Mr. Campbell correct if there was no finding in any of the Ohio —

Mr. Andrew L. Frey:

There was no finding with consent.

William J. Brennan, Jr.:

In any of the Ohio courts?

None of these three Ohio courts found this consent.

Mr. Andrew L. Frey:

I believe that’s right.

Now, we suggest that taking the paint chips from the car without seizure would not have required a warrant.

When we say this, we are not saying that the Fourth Amendment does not apply to automobiles or that the Fourth Amendment does not apply to the taking of paint chips.

We are saying that the warrant requirement that that Court has adopted as attached to the reasonableness standard of the Fourth Amendment is what doesn’t apply here.

Now, we have not depicted arbitrarily between two clauses of the Fourth Amendment and said “well, he should have the benefit of the Reasonableness Cause, but not the benefit of the Warrant Clause.”

The Warrant Clause by its terms is not applicable here.

The Warrant Clause only becomes applicable if the Court presumes the search to be unreasonable without a warrant.

He, of course, is always entitled to the reasonableness protection, assuming that the nature of the action is either a search or a seizure under the Fourth Amendment.

I’m advised by one of my colleagues with reference to Justice Stewart’s question about the key to the locker that there’s a case before the Court now on petition for certiorari from the Fifth Circuit, United States against Grill, in which, key was taken from the petitioner upon his being jailed and the police learned of a duffel bag which the key fit from a confederate who indicated that it contained evidence of a cocaine importation conspiracy.

They went to the duffel bag and they opened it up, and found the evidence and the Fifth Circuit held that they were not required to obtain a warrant in that situation.

Now, we have not yet responded to that certiorari petition, but I think in the pawnshop illustration there would be a lesser policy of privacy.

Mr. Andrew L. Frey:

If he turns his gun over to the pawnshop, I don’t see that there’s the kind of interest there that would require more than a finding of reasonableness of police action in going to the pawnshop and seizing the gun.

I see my time is up.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.