Florida v. Jimeno – Oral Argument – March 25, 1991

Media for Florida v. Jimeno

Audio Transcription for Opinion Announcement – May 23, 1991 in Florida v. Jimeno

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William H. Rehnquist:

We’ll hear argument next in No. 90-622, Florida against Luz Piedad Jimeno.

Mr. Neimand, you may proceed whenever you are ready.

Michael J. Neimand:

Mr. Chief Justice, and may it please the Court:

The respondents were lawfully stopped in Miami, Florida for a traffic violation, and during that stop they were advised that they were under suspicion for transporting illegal narcotics in their automobile.

Thereafter they were asked for consent to search their automobile for that narcotics.

Pursuant to that request the consent was granted and the officer went directly into the passenger compartment and went to the brown paper bag, which was a grocery bag, unrolled the paper bag and found the cocaine in question.

The lower court found these facts.

The lower court also found that it could have been assumed by the respondents that after they were advised that they were looking for narcotics, that the officer would have gone directly to the bag in question.

The court found, though, that it was bound by the Florida Supreme Court’s prior decision in State v. Wells that it did not allow… that consent did not allow the officer to open a container within the passenger compartment.

This court traveled directly through the lower court, found again the same findings of facts, and also found the same conclusion of law.

The Florida Supreme Court without argument affirmed on the basis of State v. Wells.

This Court then accepted certiorari jurisdiction.

It is the state’s contention in this case that the scope of the… of a consent is based upon the request that is asked and the knowledge that the officer gets from that.

Therefore, in a situation such as this where they are informed that they are looking for cocaine, or drugs, as the case may be, they are further informed that they do not have to consent if they do not wish.

They were further informed that if they did consent to the search that during the course of the search that they could choose at any time to terminate that search.

And in this case no actions were ever taken by the respondents to terminate that search.

Sandra Day O’Connor:

Mr. Neimand, what if the automobile had contained a locked briefcase?

How would you interpret the consent then?

Michael J. Neimand:

If that is a… locked with a key, then the, it probably would not be reasonable to assume that the individual consented to have his property broken.

Under the theory of this Court of consent, the consent is a voluntary nature to allow the citizenry to help police ferret out crime, and it would not be reasonable, the state submits, to assume–

John Paul Stevens:

May I ask then, are you agreeing that the Wells case was correctly decided?

Michael J. Neimand:

–Only because the individual Wells was not present at that time.

John Paul Stevens:

So you do agree Wells was correctly decided?

Michael J. Neimand:

Only on its facts.

John Paul Stevens:

But at least on its facts.

Michael J. Neimand:

On its facts, yes.

That’s why we did not–

John Paul Stevens:

And that’s the only authority that this… the Florida court relied on in this case?

Michael J. Neimand:

–Correct.

Anthony M. Kennedy:

When you answered Justice O’Connor and you said that it’s unreasonable to assume that there would be consent to break the lock, did you mean that in the technical sense of picking it or actually destroying it?

Anthony M. Kennedy:

Suppose the police officer was a good lock picker and he could just pick the lock?

Michael J. Neimand:

I think that almost goes to the same that if it was just clasp shut and you have a attache case where you could just–

Anthony M. Kennedy:

No.

My hypothetical is this is a good lock, but he’s a good lock picker.

Michael J. Neimand:

–Well, if he doesn’t destroy the property.

See, that’s the key, the destruction of the property.

I don’t think any reasonable person would consent to have his property destructed.

I think he would be–

Byron R. White:

What about to simply have his lock picked?

Michael J. Neimand:

–Well, he wouldn’t consent to have the lock picked, but it would not violate the reasonableness because he had no property destruction.

Byron R. White:

I know, but it goes to what the scope of his consent was.

Michael J. Neimand:

The scope would be determined by what he was asked to look for.

Anthony M. Kennedy:

Well, where do you come out on the question?

Does he consent or does… is the search lawful or is it not lawful if there is a strong lock but the office is able to pick it?

Michael J. Neimand:

In terms of a reasonableness approach, that would probably be unlawful as to the scope of the search because there was a protection interest involved and there would be somewhat of a destruction of the property.

Sandra Day O’Connor:

How about opening a woman’s handbag?

It’s a female driver who consents to letting the car be searched.

She has a handbag with her.

Michael J. Neimand:

I don’t think there’s a problem there, because it would not be locked.

It would be no different than a brown paper bag in this situation.

You would just open up the handbag and look in the handbag.

There would be no unreasonableness involved if you were asking to search for a–

Antonin Scalia:

What about a man’s wallet that’s still in his jacket pocket?

Michael J. Neimand:

–Again, I don’t believe that would be unreasonable if you’re looking for a particular item.

Now, drugs probably would not be located in the wallet.

Antonin Scalia:

You mean by allowing… when I consent to have a policeman search my car, I am also consenting to a personal search?

Michael J. Neimand:

Well, it would not be a personal search.

Antonin Scalia:

It wouldn’t?

I mean, he reaches in and he grabs my wallet.

Michael J. Neimand:

I would say that under the law that in order to touch a person you have to have some sort of reasonable suspicion.

Michael J. Neimand:

I misunderstood the question.

If the wallet were lying on the dashboard, similar to a purse which would be lying on the–

Antonin Scalia:

I see.

Michael J. Neimand:

–seat of the car, then that would be permissible.

Antonin Scalia:

Well, but you have already abandoned in… I think in your answer to Justice Kennedy and in your current answer, the proposition that the only determinant of the scope of the search is what you’re looking for.

That once you… once you tell the person in the car what you’re looking for, that determines the scope.

If you’re looking for beads you can look in very small containers.

If you’re looking for elephants you can’t.

Michael J. Neimand:

No, the State has not abandoned that.

That is–

Antonin Scalia:

Well, but you’re using something else in telling me that you can’t… I mean, my, I am in the car.

My wallet is in the car, in my jacket.

My jacket’s in the car.

But you’re saying the consent does not reasonably extend to that, right?

Michael J. Neimand:

–I think you would have to ask… because you’re saying may I look into your car, you’re not saying may I search your person.

Antonin Scalia:

Oh, all right.

Michael J. Neimand:

And that’s the difference.

Antonin Scalia:

I see.

And so–

Michael J. Neimand:

And if I wanted to search a person I would ask to consent to search the person.

Antonin Scalia:

–Likewise, when you say may I look into your car, I assume your answer to Justice Kennedy implied, it does not say may I… may I look into locked trunks in your car, right?

It doesn’t–

Michael J. Neimand:

I can extend to that based on the factual circumstances of a particular case.

Antonin Scalia:

–Your answer to him was you couldn’t pick the lock, right?

You could not.

Michael J. Neimand:

Again, what I would say, that it would depend on the facts or circumstances.

If I went to the lock and I tried to open it, and I went with a lock pick and the defendant or respondent will consent he was there while I was doing that and there was no termination of consent, or they basically assented to my conduct, then that would be a further consent to–

Antonin Scalia:

Oh.

Well, what happened with the paper bag here?

Was there any objection when–

Michael J. Neimand:

–No, sir.

Antonin Scalia:

–Well, why don’t you use that ground here instead, I mean, you could say no matter what the initial permission was, when there was no objection to looking in the bag, I guess, was that permission to look in the bag?

Michael J. Neimand:

Well, under the terms here it was, because they were told–

Antonin Scalia:

Or does that only work for trunks and not for bags?

Michael J. Neimand:

–No.

They were told in this case, Your Honor, that you may at any time during our search terminate the search on any item.

So obviously in this case, on these facts, that would have worked in that situation as well.

The fact of the matter is, though, that the lower courts did not go that far.

They said that, simply that once you get the consent it goes to the entire… only the compartment and no containers within that compartment.

And they applied a per se rule in that instance that you could not go any further than looking into the car.

Their basic approach was that you could stick your head in and look around for the narcotics, even though they were–

Thurgood Marshall:

Well, after they found the narcotics, what use was there in looking in the rest of the car?

Michael J. Neimand:

–Well, there might have been more narcotics in the car.

Thurgood Marshall:

There might have been what?

Michael J. Neimand:

At the time they located the narcotics in the car, that gave them probable cause to see if there was narcotics–

Thurgood Marshall:

Yeah, but why did they have to look for something else after they found narcotics?

Michael J. Neimand:

–But they didn’t.

In this case they exactly went to the paper bag.

And once they found the paper bag, that was it, they were arrested.

They did no… did not do any further search.

Thurgood Marshall:

They didn’t search any further?

Michael J. Neimand:

No, sir.

Thurgood Marshall:

Because they didn’t need to, did they?

Michael J. Neimand:

In this case, because of the facts, the respondents were under suspicion for transporting that, those drugs in that paper bag.

But just because there was suspicion that that bag contained drugs, they did not have to ask specifically to search that drug, because he search itself, the consent to search itself was valid and they kept within the scope of that search.

Thurgood Marshall:

Why was the search valid?

Michael J. Neimand:

Because there was a valid consent.

Consent in this case is not at issue.

The only person who–

John Paul Stevens:

Well, but isn’t it at issue to this extent, the scope of the consent?

John Paul Stevens:

I mean, I understand it makes… doesn’t it make some difference what the officer’s question is?

If he says, for example, may I look in your back seat, and the driver says sure, does that sure mean he may also open containers in the back seat?

Michael J. Neimand:

–It can.

A general consent can.

It depends really on the facts.

A general consent may–

John Paul Stevens:

Well, what were the facts in this case?

What precisely did the officers say and what did the driver respond?

Michael J. Neimand:

–The facts showed that this officer overheard some conversations at a phone booth–

John Paul Stevens:

But… I understand he has reason for… I just want to know what he said.

What were the words that gave rise–

Michael J. Neimand:

–He said may I search… we believe you are transporting narcotics.

We are searching for… may we search your car for illegal narcotics?

And the consent was yes, you may.

And it was a very definite request and a very definite answer of yes.

There was no hesitation.

He was further told, once again, that he did not have to consent, and if he did consent he could terminate that consent at any time if he did not want anyone to go into any part of–

John Paul Stevens:

–Are these in the findings?

Because these facts aren’t in that much detail in the briefs.

Michael J. Neimand:

–This is the fact that is found by the lower court.

John Paul Stevens:

I see.

Michael J. Neimand:

In the order of the trial court in the special hearing, this–

William H. Rehnquist:

And where was the paper bag?

Michael J. Neimand:

–The paper bag, I believe, was in the, either in the back or the front seat on the floor.

Just rolled up, it wasn’t sealed, stapled shut, or anything in that nature.

It was a–

But it was brown?

Michael J. Neimand:

–Yes.

I did read Acevedo.

It was another brown paper bag.

Michael J. Neimand:

So that it was lying on the floor in, basically in plain view.

They did not have… the officer did not have to go through any tearing of any seats, going under any seat–

John Paul Stevens:

What if the top of the bag had been glued together so they couldn’t get in without tearing it?

Could they have torn it?

Michael J. Neimand:

–They probably could have, had they not destroyed the bag.

If it was not that strong of a glue, or any type of a glue–

John Paul Stevens:

No, they had to… just, I assume you have to tear the bag to see what’s inside it, and look through the hole.

Michael J. Neimand:

–There should be no problem on that.

It’s not really a destruction of property.

John Paul Stevens:

No problem which way?

Michael J. Neimand:

To be able to do that, because it’s just a brown paper bag, easily purchased at any grocery store with any kind of grocery items.

It comes along with it.

It’s not as if it’s a suitcase–

John Paul Stevens:

But if it were a silk purse it would be different?

Michael J. Neimand:

–I think there would be an expectation, a reasonable expectation that the police would not rip up your silk purse.

You spent some good money for that.

John Paul Stevens:

So the test isn’t whether you have to damage the item to look inside it, but whether you damage it enough so it might bother the owner?

Michael J. Neimand:

I believe so.

I believe–

John Paul Stevens:

He doesn’t have to stop and say do you mind if I tear the bag and take a look inside?

Michael J. Neimand:

–It would help, obviously.

John Paul Stevens:

Well, sure it would help.

Michael J. Neimand:

But I don’t think they have to, no.

Antonin Scalia:

A burlap bag is presumably somewhere in between, right?

[Laughter]

Michael J. Neimand:

It could be.

Then again, you might be able to see right through the burlap bag.

It depends on how it has been handled.

John Paul Stevens:

But what if you can’t?

Michael J. Neimand:

If it’s shut and… I believe you can.

Michael J. Neimand:

I believe it could be the nature of the item that we’re looking at.

Again, we’re talking about destruction of personal property, and you’re really not destroying that personal property because it’s just a paper bag or it’s just a burlap bag which you can refold over and close up and go on your way.

John Paul Stevens:

I mean, what do you care how valuable it is?

It’s my bag.

What right do you have to destroy it?

I didn’t give you any authority to destroy my bag.

I don’t care how valueless it is.

It’s mine.

Michael J. Neimand:

But you consented for me to look into it.

John Paul Stevens:

To search.

I didn’t consent to you to destroy a single thing.

Michael J. Neimand:

But it’s not a total destruction.

Antonin Scalia:

Cheap or expensive, I gave no such consent.

Michael J. Neimand:

But it’s not a total destruction.

It’s merely an opening of the glue or the staples or the rope that is tied around it.

We’re not talking about total destruction of the property.

We’re talking about simply being able to open that property.

Antonin Scalia:

So you at least wouldn’t rip the bag?

You wouldn’t rip the bag?

Michael J. Neimand:

No.

We would not attempt to destroy the property whatsoever.

We try to get into the property as easily as possible without destroying your personal property, because obviously you’re not going… an individual is not going to consent for the police to destroy their personal property.

Thurgood Marshall:

Mr. Neimand, it’s your position that no pressure at all was used against the bag?

Michael J. Neimand:

In this case no pressure?

No, sir.

Thurgood Marshall:

No threats or no anything?

Michael J. Neimand:

No.

The facts do not show that.

Thurgood Marshall:

The man himself knew that he had narcotics?

Michael J. Neimand:

Yes, sir.

Thurgood Marshall:

And he knew that this man was looking for narcotics?

Michael J. Neimand:

Yes, sir.

Thurgood Marshall:

And that if the man found narcotics he was going to jail?

Michael J. Neimand:

Yes, sir.

Thurgood Marshall:

Why did he say yes, look?

Michael J. Neimand:

There is many reasons.

Thurgood Marshall:

Sir?

Michael J. Neimand:

There are many reasons.

He might be bluffing.

Thurgood Marshall:

I’m listening.

Michael J. Neimand:

He might be bluffing, he might feel that–

Thurgood Marshall:

He’s bluffing?

[Laughter]

Michael J. Neimand:

–That’s right.

He might say if I’m cooperating they might not go that far.

That’s right.

Drug dealers are not very smart, because if they were they wouldn’t be getting caught.

They might have been counseled by their attorney that they can’t go that far.

Thurgood Marshall:

Well, let’s not get into how many are not caught.

Michael J. Neimand:

There are many reasons why an individual would consent.

William H. Rehnquist:

We’ll recess here until 1:00 p.m. Thank you.

Mr. Neimand, you may proceed with your argument in Florida against Jimeno.

Michael J. Neimand:

If there are no further questions at this time, I wish the remaining time for rebuttal.

Thank you.

William H. Rehnquist:

Very well.

Mr. Roberts.

John G. Roberts, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

Respondent raises two objections to the admissibility of the cocaine.

The first focuses on the officer, what he really knew as opposed to what he said in asking for consent, and the second focuses on the defendant, what he must have meant as opposed to what he said in giving consent.

First the officer.

John G. Roberts, Jr.:

Respondent argues that the officer knew that what he was looking for was in the bag, and that therefore he should have asked for consent to search the bag.

Respondent surmises that the officer didn’t do so because Jimeno probably would not have given that consent.

Well, that’s probably right, but there’s nothing in the Fourth Amendment that requires the police to disclose to a suspect everything they know about him before asking for consent.

John Paul Stevens:

Did you say it’s probably right that if he had known he was asking to search the bag he would have refused?

John G. Roberts, Jr.:

No.

I said it was probably right that if the officer asked for consent to search the bag, the defendant probably would have refused.

John Paul Stevens:

I thought the position of the State was that they did ask for consent to make a search that necessarily included the bag?

John G. Roberts, Jr.:

That’s exactly right, but those are two very different things.

If I… the officer comes up and asks for consent to search the car, you don’t know that he’s on to you.

You don’t know that he knows about the bag.

John Paul Stevens:

But do you know that he means to search the bag?

John G. Roberts, Jr.:

In the exchange I am conducting an investigation for narcotics, may I search your car, go ahead, I have nothing to hide, reasonably conveys consent to search containers in the car that might contain the object of the search.

John Paul Stevens:

Do you think it means he intended to give consent to search the bag or not?

John G. Roberts, Jr.:

He did not limit the consent he gave.

John Paul Stevens:

Well, I understand, but what do you think his actual intent was?

John G. Roberts, Jr.:

I think his intent was to give a general consent to search the car.

John Paul Stevens:

No, do you… what do you think his actual intent was with respect to searching the bag?

John G. Roberts, Jr.:

I think, as the district court found in this case, he could have assumed that the officer intended to open the bag.

Yes.

John Paul Stevens:

Okay, you don’t ask–

John G. Roberts, Jr.:

I’ll try again.

I think he did, in the consent he gave… he recognized–

John Paul Stevens:

–But that wasn’t my question.

My question was what do you think his actual intent was with respect to having the bag searched?

John G. Roberts, Jr.:

–I think he hoped that the officer would not search the bag, but that in giving a general consent to search… he may have harbored the hope that the officer wouldn’t search the bag, but he did not impose that limitation on the general consent that he gave.

John Paul Stevens:

I understand that.

But why do you say then that you think if he asked if he could search the bag he would have said no?

John G. Roberts, Jr.:

Because then Jimeno would have realized that the officer was on to him, that he knew about the bag, that he knew that the bag contained narcotics.

The officer–

Anthony M. Kennedy:

But that seems to me to contradict the finding of the district court that the defendant… I think the district court said could have assumed that the intent… the defendant could have assumed that the officer would have searched the bag.

John G. Roberts, Jr.:

–That’s right.

And in giving–

Anthony M. Kennedy:

How does that square with your answer that he, he would not have given the consent if it had been asked for?

I don’t see how you square those.

John G. Roberts, Jr.:

–Two different situations.

I think if you ask for consent to search the car and you give that consent without limitation, you can assume that if the officer does go ahead with the search and comes across the paper bag that he will have understood your consent to include opening the paper bag.

Now, in a different case, if you had gone ahead and said can I search the paper bag on the floor of the passenger side of the car, the defendant would probably realize that the police were on to him at that point and wouldn’t have given that consent.

That doesn’t mean that when he gives a general consent to search the car he is not also conveying a consent to open closed containers that are found within the car.

The respondent’s position–

Antonin Scalia:

You don’t necessarily say that that includes purses as well, do you?

John G. Roberts, Jr.:

–You mean if there were… the passengers remained in the car?

Antonin Scalia:

The question that Justice O’Connor asked.

John G. Roberts, Jr.:

No, I don’t, Your Honor.

I think it’s–

Antonin Scalia:

You could draw a line between the paper bag and a purse?

John G. Roberts, Jr.:

–Oh, purse.

I thought you said persons.

I’m sorry.

Antonin Scalia:

A purse.

John G. Roberts, Jr.:

Oh.

I think the general consent would include a purse that was left in the car that was closed–

Antonin Scalia:

It wasn’t left in the car.

It is being clutched in the hands of the woman passenger.

John G. Roberts, Jr.:

–Well, and if she is still in the car, I would say no, it would not necessarily include consent to search that, because that’s more–

Antonin Scalia:

Okay.

Right.

John G. Roberts, Jr.:

–that’s with her as opposed to being in the car.

Antonin Scalia:

What if it’s just lying next to her on the seat?

John G. Roberts, Jr.:

Well, then I think the general consent does include that, because it’s not–

Antonin Scalia:

Oh, it depends on whether she is holding it or it’s next to her on the seat?

Antonin Scalia:

My goodness.

John G. Roberts, Jr.:

–Well, I think when it’s holding her, it’s reasonably understood to be part of her person, and a general consent to search the car does not include a search of the person.

But if it’s just lying in the car, then I think it’s reasonably understood that general consent would include that.

Now, of course they don’t conduct a search of the car with people in it.

They ask the people to leave before undertaking the search.

John Paul Stevens:

But any container they leave in, suitcase, briefcase, purse, general consent includes it?

John G. Roberts, Jr.:

Yes.

Yes, Your Honor.

John Paul Stevens:

You think that’s a realistic assumption?

John G. Roberts, Jr.:

I think so, yes.

Now, as Justice Marshall asked this morning, why in the world, and respondent renews this argument, would anyone give such a consent if they knew that they were carrying drugs, and there are many reasons.

They do bluff.

Go ahead, I have nothing to hide.

Thurgood Marshall:

Do you have a single case where a man said you can search the car but you can’t search that paper bag, that brown paper bag?

John G. Roberts, Jr.:

No, I’m not aware of any case that would be–

Thurgood Marshall:

Well, why do you think it’s proper to say so?

John G. Roberts, Jr.:

–Well, if he didn’t want–

Thurgood Marshall:

Is it a possibility?

John G. Roberts, Jr.:

–It is a possibility that–

Thurgood Marshall:

But it’s not a probability?

John G. Roberts, Jr.:

–No.

If the defendant didn’t want the car searched he could have said no.

Thurgood Marshall:

Have you any case where the man refused to let you search the car at all?

Why is it true that every time you come up you say please, I’m looking for dope, and the guy says it’s right here?

Does that go for every case?

[Laughter]

John G. Roberts, Jr.:

That’s not what took place here, of course.

I think the–

Thurgood Marshall:

That’s not true for every case?

My answer… my question is do you have one case where it didn’t happen?

John G. Roberts, Jr.:

–Where the people refused consent?

Thurgood Marshall:

Yes.

John G. Roberts, Jr.:

I am not aware of any immediately, but I am sure that there could be a case.

There is nothing to prevent that from happening.

The defendant could have done it in this case, or he could have limited the search, or, as I say, he could have refused the consent altogether.

Now, why would he consent?

Because they bluff.

Go ahead, I have nothing to hide.

The officer, why bother, he obviously doesn’t have anything to hide.

Anthony M. Kennedy:

Is your argument that an objective test applies and that in these circumstances a reasonable officer would assume that he had the right to search the bag as well as the interior of the car?

Is that your submission?

John G. Roberts, Jr.:

Exactly.

And under Illinois v. Rodrigues–

Anthony M. Kennedy:

I understand that submission.

I can’t really square it with your answer that you could have assumed that the… if he had been asked he would not have given his consent.

I just can’t square those.

John G. Roberts, Jr.:

–Well, they’re two different situations.

If you come up and the officer says can I have your consent to search that brown paper bag on the floor of the passenger side that you took out of the apartment building an hour ago when we were watching you, the defendant at that point knows he knows where it is, he’s going to find it.

If he says can I search your car, you don’t know what he’s searching for, you may hope he doesn’t search after you have evidenced your willingness to go along with it, you may hope he doesn’t find it.

You may hope your cohorts have hidden it better.

Keep in mind that there were two people in the car after Mr. Jimeno got out and went around and talked to the officer.

Maybe he had hoped in the interim they would have hidden it better, or maybe he was preparing a defense of lack of knowledge.

Maybe the–

Antonin Scalia:

So, it’s really a different case you’re talking about when you say if he had asked to search the bag he would not have given his consent?

You’re talking about… it becomes a different case because by asking to search the bag you give him knowledge that this defendant didn’t have?

John G. Roberts, Jr.:

–That’s right.

And there’s nothing in the Fourth Amendment that requires the police to show all their cards before they ask an individual for consent.

That’s contrary to this Court’s teaching in cases such as United States against Scott, which hold that objective facts and not the officer’s subjective motivations are determinative for Fourth Amendment purposes.

Now, every court of appeal, every Federal court of appeals to have considered facts similar to those presented here has concluded, without dissent, that the general consent to search the car includes consent to open closed containers within the car, unclosed, unlocked containers.

The decision of the Florida Supreme Court is to the contrary, and we think that that decision should be reversed.

John G. Roberts, Jr.:

Now there are limitations on the search.

It’s not a free-ranging consent.

The limitations can come from the request, I am searching for illegal aliens, may I search your car.

That would not be reasonably understood to include opening the glove compartment.

John Paul Stevens:

Do you agree with Florida that on its facts the Florida Supreme Court correctly, or I guess the court of appeals, correctly decided Florida against Wells?

John G. Roberts, Jr.:

Yes, Your Honor, because that involved a locked container.

And while it’s reasonable to construe a general consent to cover opening closed containers, we don’t think it’s reasonable to assume that an individual would voluntarily consent to the destruction of their property.

John Paul Stevens:

What if it could be opened, say an ordinary briefcase but not locked, just closed and snapped normally.

What do you do with that case?

John G. Roberts, Jr.:

That’s, we think, no different than the rolled-up paper bag.

And that, since it’s unlocked, can be opened.

And we think… the general consent to search the car, if it didn’t include closed containers, would, as the Court pointed out in the opinion in Ross, not a consent case, would be a fairly meaningless right, because contraband, particularly narcotics, is not strewn about the car.

It is kept in containers.

And therefore when Jimeno, in response to the question I am conducting a narcotics investigation, may I search your car, sure, go ahead, I have nothing to hide, I think he knew that that reasonably, the officer would understand that to include consent to look in the closed containers.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Roberts.

Mr. Weiner, we’ll hear now from you.

Jeffrey S. Weiner:

Mr. Chief Justice, and may it please the Court:

This case is about respecting privacy, being faithful to the interpretation of the Fourth Amendment, and at the same time not hampering law enforcement.

In 1982 Justice Stevens, speaking for the Court in United States against Ross, stated that we reaffirm the basic rule of the Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous court in Mensi v. Arizona citing Katz.

Searches outside the judicial process are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions.

The only one applicable here is consent.

In discussing Chadwick, Justice Stevens noted that this Court recognized that a person’s expectation of privacy in personal luggage is substantially greater than in an automobile.

Justice Marshall said a container, as opposed to the car itself, does not reflect diminished privacy interest.

Three courts below, the trial court, the intermediate appellate court, and the Florida Supreme Court all found that the respondent never consented to allow Office Trujillo to search the closed brown paper bag.

Sandra Day O’Connor:

Well, counsel, it… the Florida Supreme Court appears to have established here some kind of a per se rule when it said that consent to search a vehicle does not extend to closed containers found inside.

It seems to take the view that it… even under an objective standard, that consent would never include authority to open a bag.

Jeffrey S. Weiner:

I think that is a fair reading of the supreme court’s decision.

I–

Sandra Day O’Connor:

Do you think that’s consistent with this Court’s cases?

Jeffrey S. Weiner:

–Yes, Your Honor, I do, because I don’t believe that, although the Solicitor General urges that an objective test be implemented, that that’s the case.

The subjective intent–

Sandra Day O’Connor:

I thought in U.S. v. Ross this Court indicated that a lawful search of a car includes the right to search containers within it.

Jeffrey S. Weiner:

–That is precisely correct, Your Honor, but that was a case in which there was probable cause to believe that contraband was contained in the vehicle.

Sandra Day O’Connor:

Well, don’t you think that consent is the equivalent of probable cause?

It gives the same authority?

Jeffrey S. Weiner:

No, Your Honor, I do not.

Sandra Day O’Connor:

No?

Jeffrey S. Weiner:

Consent is valid only to the extent that the consent is given for.

So when the Florida Supreme Court says that consent to search the car does not include consent to open packages, that is entirely consistent with an objective and/or a subjective reading of what the individual consenting believes.

Sandra Day O’Connor:

It just seems to me that the court went beyond any precedence of this Court in saying the consent just can’t include authority to open a bag.

Jeffrey S. Weiner:

I don’t think the Florida Supreme Court necessarily said that.

I believe what the court said and what, at least we submit to the Court, is that if the police officer says may I search your car and the contents thereof, then there is no problem.

But when the request is simply limited to searching the vehicle, it cannot and should not be implied that that includes personalty and other things that might be in the car.

William H. Rehnquist:

Well, so you think a search of the vehicle that is consented to, then, simply means to search for things that might be spread over the seat or something like that?

Jeffrey S. Weiner:

Not necessarily.

Mr. Chief Justice, there have been several cases in which searches of vehicles included searches behind the seats, searches under visors, under mats where evidence has been found, and so it’s quite an extensive search that is permitted by a consent to search a car.

Antonin Scalia:

Although all that you can find, if you go that far, even behind the seats, the visors, into the seats, it’s okay if you find loose powder, loose cocaine powder.

But if you find a packet that has something in it that rather feels like cocaine powder, but you don’t know for sure, you can’t open the packet?

Jeffrey S. Weiner:

Well, that’s not necessarily so.

As I understand the law, if they are, if they have valid consent to search the car, in the car they then come across an object which by feel, by smell, by shape gives them probable cause, then Ross would kick in and they would have an absolute right to make a search incident to an arrest without the necessity of a warrant, unless they previously focused on the package, which would have been the case here if they had probable cause.

Antonin Scalia:

I see.

It’s not a search of the package to squeeze it and feel it?

That does not constitute a search of the package?

Jeffrey S. Weiner:

Under Arizona v. Hicks it is arguable that that is a search.

However–

Antonin Scalia:

But that was their mistake here, they didn’t feel the paper bag first.

Had they just squeezed the paper bag a couple of times, then it would have been okay?

Jeffrey S. Weiner:

–I think that’s precisely correct, and they could have… when they had consent to search, if he went to the paper bag… my feeling is he still would have had to say may I look in the bag, or may I look in the containers.

But once he had permission even to search the car, he had a right to move the bag to do the search of the car.

Jeffrey S. Weiner:

If at that point he had probable cause, he could go further.

Or as Justice O’Connor suggested in the Place case, they could have brought in a drug dog to sniff the car.

There were many, many options available to the police officer.

He took none of them, except going straight to the bag.

And this–

Antonin Scalia:

I am trying to think what the reasonable import of my expression is when I tell somebody he can search the car for cocaine.

I cannot imagine it does not mean that he can look inside packages.

Nobody carries cocaine strewn about, powder loose on the floor.

It seems to me I’m reasonably saying if you can find a package that contains it, go ahead.

Jeffrey S. Weiner:

–Justice Scalia, there are many, many cases at the trial and appellate levels in which cocaine and other contraband is found under mats, in glycine packages which are clearly visible, or the shape or size or smell of which clearly leads to probable cause.

So this doesn’t hamper law enforcement.

What it does is not only allows the police to look into containers, but as you suggested, into wallets.

And when the magic word narcotics is used, it allows them to go even further.

It allows them to go inside a little plastic sleeve that contains pictures, because narcotics could be there.

It allows them in a purse to go into a little compact, a make-up compact.

William H. Rehnquist:

That’s assuming those are lying on the seat rather than… I mean, no one has suggested, I don’t believe, that the sort of consent given here would authorize the search of the wallet contained in the jacket of the driver when he got out of the car.

Jeffrey S. Weiner:

I thought the State pretty much indicated that’s what they had in mind.

The Solicitor General said no.

But if anything is left in the car, that’s precisely what would be the case.

And that is why when someone says you can search the car, I don’t think it’s reasonable to assume they mean you can search everything.

And what we’re suggesting is here, here, is why should the trial court, why should the appellate courts, why should anyone guess when all the officer has to say is may I search the bag.

May I search your wallet.

Antonin Scalia:

All your client had to say is, when he reached for the bag, was hey wait a minute, I said you could search the car, but not the bag.

And that would have stopped it right away, wouldn’t it?

Jeffrey S. Weiner:

Well, it might have stopped it, probably would have stopped it, but the burden shouldn’t be on a citizen to stop a police officer.

Here we have three individuals who were stopped, number one, for a traffic violation.

They had not yet been given the citation.

Number two, although the officer said in the testimony they were free to leave, they couldn’t have left while awaiting the issuance of the citation.

And in addition, the police officer said we believe you have narcotics in the car, we want to search the car for narcotics.

Hardly a situation where a citizen would say please don’t look in that bag, stop the search.

Jeffrey S. Weiner:

With all due respect, Justice Scalia, I think it’s unrealistic to assume that a citizen is going to exercise their rights in that fashion.

Antonin Scalia:

Well, but then that’s just saying that our consent law is wrong.

That, you know, more advice is required than was required in Schneckloth, for example.

Jeffrey S. Weiner:

Well, I submit to the Court that that, in this situation it would be entirely proper for this Court to come down with a bright-line rule saying if you want consent to search you must ask for consent to search the items in question.

What could be the harm?

Antonin Scalia:

But that’s contrary to the thrust of Schneckloth, and I think contrary to the thrust of Scott against United States, too, where you’re talking about an objective standard, reasonable inferences to be drawn from.

Why not just leave it at that?

Because your client would lose this case, of course.

Jeffrey S. Weiner:

I don’t think that it’s contrary to Schneckloth.

It goes a little further than Schneckloth.

Schneckloth said totality of the circumstances.

The fact that an individual was not advised of his rights can be considered as a factor.

What we are suggesting is, even among this Court I presume, most respectfully, that there is a real question here, what does it mean when I say you can search my car.

Why guess?

The easy way to deal with it is to simply have the officer say what he wants to do.

It doesn’t hamper law enforcement.

Thurgood Marshall:

xxx.

If you’re searching the car and you see a holster, would you have a right to go in and see if there was a gun in the holster?

Jeffrey S. Weiner:

Absolutely.

Under Terry v. Ohio–

Thurgood Marshall:

Second question.

If you find a brown paper bag, which every law enforcement officer in the country knows usually has narcotics, would that give you a right to open it?

Jeffrey S. Weiner:

–No, sir.

Thurgood Marshall:

Why not?

Jeffrey S. Weiner:

Because their character–

Thurgood Marshall:

What’s the difference between the two?

Jeffrey S. Weiner:

–The difference is that the intended use of a holster could, is for a weapon, which in many cases is a violation of the law if it’s concealed.

A paper bag, much as in the case that Justice Scalia wrote, Arizona v. Hicks regarding the stereo component, is not inherently a suspicious item in spite of the fact that there have been several cases in which brown paper bags have contained contraband.

Have you ever seen a white bag?

Jeffrey S. Weiner:

No, sir.

Jeffrey S. Weiner:

I have see some green bags, but no brown bags… or, excuse me, no white bags.

Instead of asking for consent to search the brown paper bag here, he only asked to search the car itself.

What concerns me is that the State of Florida in their brief, the Solicitor General in their brief, never mentioned the fact that the officer stated in clear and unquestioned terms at the motion to suppress that he wanted one thing.

He wanted in the bag.

The minute consent was given to search the car, he went to the passenger door, opened it up, went right to the brown paper bag, opened it up, and went in.

Deception by the officer in not asking for permission to search the brown paper bag should not be condoned by this Court.

William H. Rehnquist:

Why do you call that deception?

He told them he was looking for narcotics.

He asked for permission to search the car.

Permission to search the car would give him access to the bag.

Jeffrey S. Weiner:

It’s deceptive because, as in Chadwick, as in Arkansas v. Sanders, as in Oklahoma v. Castleberry, all decided by this Court, this officer’s focus had been on the package, incidental to the car, before it ever got to the car.

That’s what he was after, that’s all he wanted.

William H. Rehnquist:

None of those cases say you must identify with particularity something that could also be covered by a more general consent.

Jeffrey S. Weiner:

That is true.

However, those are cases in which a warrant was required.

So particularity is necessarily required in applying for the warrant.

In a consent situation we have the exact antithesis.

We have a citizen giving up their Fourth Amendment rights.

Therefore, in order to give it up and exercise intelligently their waiver or relinquishment of a right, they should at least know what the officer is going for.

The standard shouldn’t be less.

Antonin Scalia:

So you say this case should come out the way you want even if the… even if the officer had said do you mind if I search packages in your car?

Because even then he would have been deceptive.

He really wasn’t at all concerned about other packages.

All he was concerned about was the proverbial brown paper bag, right?

Jeffrey S. Weiner:

I think if he said that it would be just fine.

And then–

Antonin Scalia:

But not according to your… to the theory you’re saying now.

You’re saying that that would still be deceptive because he really wasn’t interested in all packages.

He knew, or suspected there was something in that brown paper bag.

Jeffrey S. Weiner:

–Yes, sir, but packages would include notification that he is going to any packages.

Antonin Scalia:

But that’s–

Jeffrey S. Weiner:

Now–

Antonin Scalia:

–That’s what the argument is here.

That when you say search the xx that includes notification that it means search whatever packages are in the car.

I mean, that’s just back to your first argument.

It’s not an additional argument.

Jeffrey S. Weiner:

–In the example you gave there is one of two things that could happen.

May I search all packages?

Yes.

They go straight to the package in question.

If the package in question is the package in this case, he would have to get a warrant under Chadwick and Arkansas v. Sanders, which is good law according to this Court as recently as in Ross and… there’s no question.

But that’s not the only option.

The other options, as we discussed, is that they have every right if, in searching the other packages, they smell or feel something to go further and then possibly parlay that into a search of a car based on Ross, based on numerous other exigent circumstances which would allow the search on the spot.

So law enforcement gives up nothing and loses nothing.

We submit that a genuine intelligent consent should relate to the item to be searched, and not some general, vague, overbroad statement that we’d like to look in the car.

Much the same as if somebody is walking down the street and a police officer approaches them and says I would like to search you, does that mean they can search the briefcase or the purse or the knapsack or the fanny pack or anything else on that person?

I think not.

This case is a first party consent case.

Justice Blackmun, concurring in Ross, said it’s important for law enforcement officials and defendants that the applicable rules be well established.

We submit that an appropriate rule would be that anytime a person manifests their expectation of privacy by utilizing some layer or form of concealment of the thing or place to be searched, the officer must ask to search that item or place in order to have a valid consent.

It would certainly make life easier for trial judges, as well as appellate court judges, because no one would have to guess.

William H. Rehnquist:

Well, any clear rule would, Mr. Weiner.

It seems to me the rule that the Government contends for here would be equally clear.

It’s just that the objective test, what are the normal expectations.

I don’t think your rule gains in clarity.

It may have some other virtues, but it doesn’t seem that your proposed rule is any clearer than the Government’s.

Jeffrey S. Weiner:

Well, the Government, as I recall, had a rough time answering Justice Kennedy’s question whether if they had a lock pick expert to break in without doing damage, whether that was okay.

So they themselves don’t even know what the limits would be.

The Solicitor General suggests damage, but then in a footnote he seems to indicate that if it’s a damage to a paper bag because of the tearing of tape it’s okay.

So in other words if the bag doesn’t rise to a level of importance or money, like the silk bag that they were talking about, that’s not entitled to the same protection.

William H. Rehnquist:

And you suggest that your rule would present no such line-drawing problem?

Jeffrey S. Weiner:

I don’t see any line-drawing problems, because it’s so direct and fair and honest.

May I search the bag?

What could be easier?

William H. Rehnquist:

Well, supposing you open up that bag and find four bags inside it?

[Laughter]

Then can you search those four bags?

Jeffrey S. Weiner:

I think that when permission is granted to search a bag, it is implied that they can go further and search whatever is in that bag.

That is not a problem under those circumstances.

William H. Rehnquist:

Even though… suppose there’s a wallet in the bag?

Jeffrey S. Weiner:

I don’t see a problem.

The consent was given to search the bag and what is contained in that personalty.

William H. Rehnquist:

The why shouldn’t the same thing, when the consent is given to search the car, why shouldn’t they be able to search whatever is in the car?

Jeffrey S. Weiner:

Because the car–

William H. Rehnquist:

The car is sort of a big bag.

[Laughter]

Jeffrey S. Weiner:

–But since it’s called a car instead of a bag, it seems to me that the person consenting is consenting to search the car only.

And it would be mere speculation to assume that he or she meant searching the bag was included.

Antonin Scalia:

What do you do with a room?

Suppose, suppose a police officer asks for… I assume it follows from your theory that if he gets consent to search the room for drugs he can go in the room, but he can’t open any drawers or closets or anything?

Jeffrey S. Weiner:

I think that’s exactly correct.

And I don’t think that hampers law enforcement.

Justice Scalia, what we have had is a series of cases–

Antonin Scalia:

But that isn’t the issue.

I mean, the issue is that what I mean when I say sure, search the room.

Is that what I mean, you can just walk in and look around the walls but you can’t–

Jeffrey S. Weiner:

–No.

It means you can go around and you can look in the room, anything in plain view is perfectly fine.

As you suggested in Arizona v. Hicks, anything is fine as long as you don’t start going into things.

What is the burden that we’re asking?

Jeffrey S. Weiner:

Simply that–

Antonin Scalia:

–I said search the room, not look around the room.

I said search the room.

When somebody searches a room he pokes around, looks under things, opens drawers, and so forth.

And isn’t it the same thing when we say search a car?

Jeffrey S. Weiner:

–I don’t think so, because I think that reasonable people can differ as to what the consent is.

If a police officer says may I search your home, I don’t think that necessarily means that the police can go into every nook and cranny.

And when it’s narcotics no papers are protected, nothing is protected, because narcotics, as they are fond of saying, can be anywhere, which is true.

So nothing is protected.

Anthony M. Kennedy:

Suppose he’s in the room and says may I search the room?

Jeffrey S. Weiner:

I still think he would have to simply go one step further and say may I search the room and the contents, whether it be a desk, a box, a purse, a package.

Why is that burden too great to ask of an officer?

Why isn’t it reasonable to say, since this is consent, this is not–

Anthony M. Kennedy:

What do you do with the finding of fact here that the driver could have assumed that, and this is a finding of fact–

Jeffrey S. Weiner:

–Yes, sir.

Anthony M. Kennedy:

–and I think also reasonable, that the police would search the bag?

Jeffrey S. Weiner:

I’m not quite sure what to make of that finding, because when the trial judge said he could have assumed, I think that begs the question and supports the position that we are suggesting, that nobody knows.

He could have assumed it, maybe he didn’t assume it, he might have assumed it.

We don’t know.

She didn’t know.

Nobody knows, but she knew he didn’t give definite consent.

The burden should always be on the Government to justify the consent and its scope.

It shouldn’t be the burden of the consenting individual to tell a police officer to stop or not to look in the package.

Antonin Scalia:

Mr. Weiner, how does… I confess never having gotten a search warrant and never having been a policeman or having a client served one.

How does a search warrant read?

If you get a search warrant to search, to search a home or to search a room, does it specifically say that you’re authorized to open drawers and look in closets and so forth?

Jeffrey S. Weiner:

It doesn’t need to say it.

Here is what has happened as far as–

Antonin Scalia:

Why doesn’t it?

I mean, it seems to me that’s maybe a good test of what the import of language is.

Antonin Scalia:

When you say you can search, does it mean you can look in things?

Jeffrey S. Weiner:

–I suggest it is not a good analogy for this reason, sir.

A compelled search is very, very different from a consent search.

It is the exact opposite.

A compelled search the individual cannot resist, cannot do anything but sit there while the search takes place.

Antonin Scalia:

Yes, but I’m just talking about the language.

I mean, a warrant is directed to the officer and the judge says something to the officer.

If the judge just says you shall search these premises–

Jeffrey S. Weiner:

Yes, sir.

Antonin Scalia:

–and if that is alone enough to mean to the officer that he can look in drawers, or if it says you shall search this car, and that is enough to mean to the officer that he shall look inside packages, I think that that would be strong indication that it means the same thing when a private party says it.

Jeffrey S. Weiner:

Well, with all due respect, sir, I… there are two things that happened in the cases regarding search warrants.

The first one is that police officers routinely ask for permission to search a place and don’t narrow it as they are required to do.

Typically, however, the search warrant gives them permission to search everyplace.

Even though they may have known that the contraband was located, for example, in a bedroom, they will search and tear apart the entire house.

So it’s unreasonable, I suggest, sir, to assume that a citizen would understand that giving consent to search would be consent to do everything, to look in everyplace.

Narcotics knows no hiding places that are too small.

And I don’t believe the citizen understands that consent is automatically a free for all for the officer to go anywhere he wants.

In addition, Justice Scalia, a search warrant commanding an officer to go in and to look for narcotics actually allows the tearing down of walls, in a car, the going into tires.

There are no limits.

So certainly, using your analogy, a citizen who says yes, you may look isn’t consenting to have his home or car torn to smitherines because an officer feels narcotics might be hidden somewhere.

That’s why I don’t think we can draw the analogy between a compelled search and a consent search.

Totally different.

The State of Florida has not demonstrated, we submit, the need, the desire, the helpfulness to law enforcement of allowing a general search to vitiate the Fourth Amendment when the consent is not asked for as a particular item.

Society and civility must respect a higher level of privacy than what the State of Florida and the Solicitor General are suggesting.

If there are no questions, that will conclude my argument.

I thank you.

William H. Rehnquist:

Thank you, Mr. Weiner.

Mr. Neimand, do you have rebuttal?

You have 5 minutes remaining.

Michael J. Neimand:

Thank you.

Michael J. Neimand:

The theory that my opponent is stressing today has already been rejected by this Court in Horton v. California, and this Court has held that the fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or valid exception to the warrant requirement.

William H. Rehnquist:

Well, what case is that, Mr. Neimand?

Michael J. Neimand:

That’s Horton v. California–

William H. Rehnquist:

Horton?

Thank you.

Michael J. Neimand:

–Your Honor, and that came out just recently.

And that is exactly what they’re asking you to recede from today, saying that if the officer knows what he’s looking for he has to tell the individual he wants to search from.

John Paul Stevens:

May I ask a question that occurred to me during your opponent’s argument on the question whether the consent to search the car gives authority that’s coextensive with Ross case probable cause or a warrant.

Because in those cases, as your opponent points out, there is damage… there can be, with probable cause, damage to the car, or under a warrant.

Michael J. Neimand:

Correct.

John Paul Stevens:

But you don’t take that position with respect to a consent search, am I right?

Michael J. Neimand:

Correct.

We say that we have the same ability only in that we will not destroy personal property.

John Paul Stevens:

But then you are conceding that the search pursuant to consent to search a car is not coextensive with the Ross search?

Michael J. Neimand:

Not as complete as a Ross case.

John Paul Stevens:

Right.

Michael J. Neimand:

Because we will not destruct the personal property, because it would not be reasonable to assume that.

Thurgood Marshall:

What happens… would he then be required to say I want to search the car and that bag?

Michael J. Neimand:

No, not at all.

Thurgood Marshall:

Why not?

Michael J. Neimand:

Because it’s the same… the concept is the same.

And that is if I want to–

Thurgood Marshall:

Well, the concept is it’s one thing to search the car, and it’s one thing to search the bag.

Now you said he said get the consent.

Well, if he gets the consent to search the car, what about the consent to search the bag?

Michael J. Neimand:

–The bag is now part of the car.

It’s the same concept that my opponent has conceded, that if the consent to search the purse or the… went to all items within that purse.

What is the difference between the car and the items contained within the car, and the items contained within the purse?

In fact under the scenario that my opponent is taking in the items contained within the purse, he is saying that you could rifle through a wallet and go through every single compartment, and it indicates you might even be able to break or destroy property.

Thurgood Marshall:

What about my scenario?

Michael J. Neimand:

It’s the same.

You have the ability, because the bag is now part of the car.

It’s… you open the door, you go in and you look around in the car, and this was not just a may I look around.

This was a specific request to search.

Thurgood Marshall:

At one time you see the bag was right there by the seat, and now you say the bag you had to search around for.

Michael J. Neimand:

No.

No, I’m not saying that.

Thurgood Marshall:

There’s no evidence in the record that says you had to search for that bag.

Michael J. Neimand:

No, I’m not saying you had to search for the bag.

I’m saying the bag is right there.

Thurgood Marshall:

Right.

Michael J. Neimand:

And he went right to the bag and he opened it.

Thurgood Marshall:

Well, why didn’t he say to him I want to search that car and I want to search that bag in particular?

Michael J. Neimand:

He could have, but under this Court’s previous holdings he did not have to.

Thurgood Marshall:

It would have been clearer.

Michael J. Neimand:

It would have been clearer, but it wouldn’t have… it wasn’t required under the Constitution.

And therefore he did not have to do that.

Thurgood Marshall:

It would have been clearer?

Michael J. Neimand:

Obviously.

I would not stand here and say it wouldn’t have been clearer, but just because it would be clearer, that doesn’t mean that it has… it’s authorized or required under the Constitution.

And in fact under this Court’s previous case that I cited, Horton, that is not required.

Thurgood Marshall:

I think as close as we’re going to get is clearer.

Michael J. Neimand:

That’s as close as I will get, Your Honor.

[Laughter]

The interesting point here is what was told the defendant, that he could stop the search at any time.

And under that type of language it’s clear that he had… he knew when they went to the bag that he could have stopped it.

And the reason we do not have any cases where there was a refused consent, because if there is a refused consent the police will normally let the individual go on his way, or the lower court, when they suppress that evidence, it remains suppressed.

Because under this Court’s holdings, when there is an encounter and there is a request for consent and there is no probable cause, when the individual says no, this is in Royer and in Mendenhall and that line of cases, then the police must leave the individual alone and walk away.

That’s why we don’t see any cases where there’s a refused consent situation.

So–

Thurgood Marshall:

But on the facts… I can’t… maybe I’m mixing it up with another case.

But in this case didn’t they tell him that if he didn’t consent they would go get a warrant?

Michael J. Neimand:

–That was in the record.

John Paul Stevens:

So you think it’s likely that if he had refused consent he could have just left?

Michael J. Neimand:

The finding, though, was that the consent was voluntary and that was never challenged below.

John Paul Stevens:

But that’s not an answer to my question.

Michael J. Neimand:

I’m… there is no answer to that question, because–

John Paul Stevens:

Well, the answer is pretty obvious.

Michael J. Neimand:

–Well, but unfortunately we do not know because they never testified, and so we don’t even know in this case.

But yes, that was in the record.

William H. Rehnquist:

Thank you, Mr. Neimand.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten AM.