New York v. Class

PETITIONER:New York
RESPONDENT:Class
LOCATION:Court in Ouachita County

DOCKET NO.: 84-1181
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New York Court of Appeals

CITATION: 475 US 106 (1986)
ARGUED: Nov 04, 1985
DECIDED: Feb 25, 1986

ADVOCATES:
Mark C. Cogan – Pro Hac Vice
Steven P. Kartagener – on behalf of the petitioner
Steven R. Kartagener – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – November 04, 1985 in New York v. Class

Warren E. Burger:

Mr. Kartagener, I think you may proceed when you’re ready.

Steven P. Kartagener:

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court, the Court today is being asked to decide whether a New York City police officer’s efforts to conduct a routine inspection of an automobile’s vehicle identification number, the VIN, located on a dashboard of a car and ordinarily viewable through the windshield, attending a lawful traffic stop for two observed traffic infractions that were observed by the police officer, constitutes a search as that term is defined within the meaning of the fourth amendment.

Now we, of course, argue preliminarily in our brief that no search occurred here because the police officer’s actions did not infringe on any reasonable, justifiable expectation of privacy in this case.

Now, of course, it’s been said frequently that there are two sides to every argument, and we recognize that, of course.

And what makes this case a little bit special, and we’d like the Court to recognize that, is that regardless of how this Court determines this question of search/non-search, unlike some other cases that have come before the Court recently in which that determination was the final outcome determinative here, regardless of how the Court determines the preliminary question, we suggest that the ultimate conclusion of the Court should be the same… that there was no Fourth Amendment violation here… because we do believe that even if this was a search here, the police officer’s actions in this case of opening up a car door and reaching within his hand to move aside a paper that covered the vehicle identification number was so manifestly reasonable, so minimally intrusive under the circumstances, that the proper balance between the individual’s rights and the compelling interest of society was struck and that no Fourth Amendment sin occurred in this case.

Harry A. Blackmun:

Counsel, did the decision of the court below rest at all upon the New York Constitution?

Steven P. Kartagener:

Your Honor, the decision of the court below cited the New York State Constitution once in the first sentence of the opinion, finding that the actions of the police officer violated the Fourth Amendment and the New York State Constitution, which by the way is worded in precisely the same fashion as the Fourth Amendment.

Only once does it mention the New York State Constitution, but we think it’s rather clear under this Court’s determination in Michigan v. Long, the Court does have jurisdiction to hear this case because after mentioning the New York State Constitution, it left it behind and went on to analyze the case in terms of the Fourth Amendment which was cited a number of times within the opinion, and because of the reliance that was placed on a number of the constitutional cases emanating from this Court, cases such as United States v. Chadwick, United States v. Chase, and a number of other cases, and we think that here they only cited the New York State Constitution once in Michigan v. Long… it was twice, and in California v. Carney as well there was a citing to the State’s Constitution.

But, we think it clear here that there was not the required plain statement that the decision in this case rested on an adequate and truly independent State ground.

Sandra Day O’Connor:

Mr. Kartagener.

Steven P. Kartagener:

Yes, Your Honor.

Sandra Day O’Connor:

May I inquire whether under New York law, New York would have required exclusion of the evidence in question?

Steven P. Kartagener:

Well, the New York Court of Appeals said that under the Fourth Amendment, and this is the first case that has gone to the–

Sandra Day O’Connor:

I am asking you, as a matter of New York law, because presumably you practice law there and are familiar with it.

Steven P. Kartagener:

–I would suggest, Your Honor, that New York law would not require the exclusion of evidence, that this is a case of first impression there.

The Court saw no need, as it has in so many other cases, as I might point out, Justice O’Connor, that Court, the New York Court of Appeals, is not shy about making its opinion known when it feels that New York law alone might require the exclusion of evidence although the Fourth Amendment does not.

I would suggest that since this case came down after Michigan v. Long, the New York Court of Appeals was on ample notice as to how to make that plain statement and chose not to do so.

It said it violates the Fourth Amendment and the New York State Constitution, and basically left–

John Paul Stevens:

Would it have… what about the statutory question?

They also said, as I read the last paragraph, that Section 4 of the Vehicle and Traffic Law did not authorize the officer to do what he did.

Steven P. Kartagener:

–Well, that is done, Your Honor, because that was refuting an argument that we made in our brief.

They did not say that that statute, Vehicle and Traffic Law Section 401, prohibited the search.

They merely said that the search violated the Fourth Amendment and 401 which has nothing to do with vehicle identification numbers themselves, did not give the police the authority that we suggest that it might have, and we think that it is one thing to say that a statute doesn’t give you the right to do it, and entirely another thing to say the Fourth Amendment proscribes it.

The Court did not say that VTL Section 401 prescribed the search, Justice Stevens.

Thurgood Marshall:

Would you go back… you skipped over… the wording is exactly the same?

Steven P. Kartagener:

Yes.

The New York’s Constitution–

Thurgood Marshall:

So, when they’re talking about the Fourth Amendment, could they possibly be talking about the New York–

Steven P. Kartagener:

–Well, I think that because it is precisely the same wording, it’s logical that they might frequently cite the New York counterpart to the search and seizure provisions of the federal Constitution, but I think it’s clear that the decision rested largely on federal grounds.

Steven P. Kartagener:

At the least, they were integrally interwoven.

If I might suggest to the Court–

John Paul Stevens:

–May I just pursue the statutory question one more moment.

You said it didn’t authorize them to do it?

Steven P. Kartagener:

–Yes.

John Paul Stevens:

But what good would it have done to say it authorized it if they had already held that it was constitutionally impermissible for the officer to do that?

The statute couldn’t authorize a violation of the Constitution.

Steven P. Kartagener:

No.

What we were suggesting, Your Honor, was that under New York law, because there is an obligation to surrender one’s certificate of registration, and that’s what VTL 401 is all about, that the giving over of the certificate of registration is meaningless if you can’t compare the registration against the vehicle identification number.

So we tried to draw an analog.

Because the driver was required to hand over the certificate of registration, there had to be an absolute right under the statute to check the vehicle identification number out.

But what I think is critical once again is that that was an argument that we made as a justification for saying it fit in with the general scheme.

The Court rejected that argument.

But what they did say was, assuming that statute doesn’t exist, what you really have here is a violation of the Fourth Amendment.

And, as I read this Court’s decision in Michigan v. Long, I’d like to suggest that it’s precisely the type of discussion that we’re having right now, about whether New York law might require or wouldn’t require, which has been eschewed by the Court’s determination in Michigan v. Long that we shouldn’t be getting into that type of a debate.

If the face of the opinion does not contain a plain statement from the State Court saving, we are deciding this essentially on an adequate and independent state ground… perhaps here the New York State Constitution or statute, it’s not goin’ to do that, that opinion, and instead cites the Fourth Amendment repeatedly, and cases from this Court repeatedly.

We think it’s rather clear that the Court, consistent with Michigan v. Long and California v. Carney has the jurisdiction to consider and to decide this case.

This would not be an extension of that principle.

If anything, it’s a diminution of sorts because in Michigan v. Long, as I pointed out, it had two citations to the State Constitution.

Here we’ve got only one.

I’ve suggested to the Court that there are two bases, or two sides of the line here, search or non-search, and we suggest that we should prevail under either.

But, we do believe that as a matter of constitutional law and as a matter of common sense, the sounder conclusion is that no search did occur here.

Why do I say that?

Because we know that the term “search” has a very special meaning in the decisions of this Court.

There is no search unless the Government intrudes upon a reasonable, justifiable or legitimate, if you will, expectation of privacy that the individual has, and we suggest to you that clearly, under the circumstances of this case, the Respondent could have had no reasonable expectation of privacy.

To begin with, we’re dealing with an automobile, not the individual’s person, not his home, not his office, an automobile which this Court has recognized involves a reduced expectation of privacy in the first instance.

And why is there that reduced expectation of privacy?

Some of the early decisions of this Court noted the relatively open configuration of the Court… of the car, excuse me.

But in California v. Carney the Court says, but there’s another very special thing.

Cars are pervasively regulated.

Steven P. Kartagener:

Well, here you have pervasive government regulation of a car.

You have a car being stopped because of traffic infractions.

Everybody knows you have to hand over your registration, your license, and today frequently the insurance card, and yet… and presumably to give meaning to that governmental regulation.

Yet, what happens if you can’t look at the VIN?

It means that the whole concept of regulating automobiles becomes nugatory.

Because the VIN, the Vehicle Identification Number, is the heart of, the sine qua non of that entire pervasive regulatory scheme.

Why?

Because my registration and anyone else’s usually has the car’s Vehicle Identification Number.

John Paul Stevens:

In this case did he make any use of the VIN, the officer?

Steven P. Kartagener:

Well, the officer tried to look at it, Justice Stevens.

He wanted to check it out.

It is, we suggest, a very routine procedure for police officers to do that.

John Paul Stevens:

What did he do in this case?

Did he actually write it down or phone it in or anything like that?

Steven P. Kartagener:

Well, what happened, Justice Stevens, was that as the car was stopped and pulled over for the two traffic infractions, the driver got out of the car and proceeded back to the police car to speak to one of the officers who was standing there, Officer Meyer.

Harry A. Blackmun:

Is that customary in New York, incidentally?

Isn’t it good police practice to keep the supposed offender in the automobile?

Steven P. Kartagener:

Well, Justice Blackmun, I’ll be quite frank about that.

The best police practice, I do believe, and I’ve read some of the police training manuals, is to keep the individual in the car on some occasions, depending on the circumstances.

However, in Pennsylvania v. Mimms, it was condoned to bring an individual out of the car if there is a concern for the police officer’s safety.

There doesn’t have to be a reasonable suspicion or anything.

Sometimes he’ll bring the individual out of the car.

Generally speaking, I do believe, police officers maintain greater control by keeping the individuals in the car.

But what happened here, it’s not the police officer who got the individual out of the car.

What happened was, answering Justice Stevens’ question, is that the car was pulled over.

Before the police officers even got up to the individual’s car, the Respondent here, the defendant down below, gets out of his car and walks back to the police officers’ car.

As he was speaking to Officer Meyer, his partner, his regular partner, Officer McNamee, walked up to the Respondent’s car to try to look at the vehicle, inspect the Vehicle Identification Number.

What happened then?

He assumed because it was an older car, and the earlier case before this Court that he dealt with a very expensive car, this was not such an expensive car.

It was a ’72 Dodge Duster.

Steven P. Kartagener:

It was an older car.

The officer assumed the VIN might be on the door jamb as the older cars had, so he opened up the car door to look on the door jamb, did not see the VIN number there.

He then knew that it would have to be in one location, on the dashboard in a position that should be viewable through the windshield, because mandatory federal regulation now says that ever since 1969 the VIN belongs there so everybody, including police officers, can look at it.

And, what does he find?

A little bit of paper, a mischievous scrap of paper, is covering the VIN number.

So, although my adversary here–

Warren E. Burger:

We will resume there at 1:00 o’clock, counsel.

Steven P. Kartagener:

–Yes, Your Honor.

Thank you.

Warren E. Burger:

You may resume argument, counsel.

Steven P. Kartagener:

Thank you, Mr. Chief Justice.

I hate to leave a question unanswered, and so if I may answer the question that was asked of me by Justice Stevens at the end of the morning’s argument, the question was did the police officer do anything with the Vehicle Identification Number, if I remember the answer correctly.

And the answer, Justice Stevens, is that he never really had the opportunity to do anything with it because as he was reaching into the car to move the scrap of paper off of the VIN number he looks down, and what does he notice?

Lo and behold, sticking out from underneath the seat… he did not look under the seat, but sticking out by about an inch is the handle of a pistol.

He recovered the pistol and then the Vehicle Identification Number became at least somewhat de minimis because what they were confronted with then was the felony of an unlawful weapons possession.

But I would point out also, the defendant, the Respondent here, did receive two traffic infractions summonses in addition to being arrested for the felony and to some extent the VIN number became at least somewhat… or less important because they also discovered during the course of their inquiry and discussions with the defendant that he was an unlicensed driver as well.

So, the likelihood is, this was not going to be the type of case where they would check a VIN number and let the defendant perhaps drive on his way.

This was a situation where he was not going to be allowed to get back into that car and drive it.

John Paul Stevens:

I would suppose your reasons for wanting to know the VIN number to determine whether maybe it was a stolen vehicle or something might have been increased rather than decreased when you suspected him of other wrongful conduct?

Steven P. Kartagener:

Well, we do not suggest that he was suspected of any wrongful conduct in the form of a stealing of the car or anything like that.

John Paul Stevens:

But then, why do you look at the VIN number?

Steven P. Kartagener:

You check the VIN number for a number of reasons.

The only way you can tell for sure that a car is the car described in a registration certificate or in an insurance card is by comparing that number with the VIN number.

If you don’t make that comparison those pieces of paper don’t mean that much, quite frankly.

Warren E. Burger:

Do you suppose that when they got him down to the police station on the possession of the gun charge, that somebody would check out to see whether he was driving a stolen car at that time?

Steven P. Kartagener:

Well, certainly we would suggest that under the circumstances, if he is going to be arrested for the weapon, the police have an absolute right to check the VIN number and if it turns out to be stolen that would be an added charge that he was going to face.

Warren E. Burger:

Do you think there might be some connection between this man’s cooperative conduct in getting out of his car and going to the policeman, and the fact that he knew he had a pistol under the seat?

Steven P. Kartagener:

Well, I certainly think that is a reasonable inference to draw from the circumstances, Your Honor.

And indeed, the lower state courts found that there was some reasonable suspicion tied to his getting out of the vehicle and walking over to the police car, but I do not come before the Court today to argue vigorously that that in and of itself creates reasonable suspicion that the car is either stolen or that there is a weapon in the car.

I don’t argue that.

Warren E. Burger:

That’s something for the fact finders, I suppose.

Steven P. Kartagener:

Well, the facts found by the lowest court, the Supreme Court, Bronx County, the trial court, it was reasonable suspicion.

But the New York Court of Appeals disavowed that and said that the getting out of the car in and of itself does not create that type of reasonable suspicion.

Thurgood Marshall:

When an unarmed man walks up to two policemen, you think that’s suspicious?

Steven P. Kartagener:

No.

I’m suggesting, Your Honor, that–

Thurgood Marshall:

Do you?

Steven P. Kartagener:

–No.

Thurgood Marshall:

I didn’t think so.

Steven P. Kartagener:

I do not.

But, I was not the fact finder, and I’d say that that, standing alone, Your Honor, it can be a whole bunch of things.

Sometimes a certain look by an individual might add to it, but–

Thurgood Marshall:

It doesn’t help me to decide that.

Steven P. Kartagener:

–I’m sorry, Your Honor?

Thurgood Marshall:

It doesn’t help me to decide–

Steven P. Kartagener:

The fact that he got out and walked–

Thurgood Marshall:

–Yes.

Steven P. Kartagener:

–Well, it does in one respect, Your Honor, because I think it helps us in one important respect.

This Court, in Pennsylvania v. Mimms, said that in the context of a routine traffic stop with any concern that an individual is armed, you have the right to force the individual to get out of the car.

We didn’t even have to move the person.

Thurgood Marshall:

How were you worried about this man being armed, when the gun’s in the car and he’s out of the car?

Steven P. Kartagener:

Well, that brings us, quite frankly, to a latter portion of our brief which I’d like to answer and that is, if we are going to be dealing with the question of concern about the individual being armed, and I would suggest that doesn’t go to the question of whether it’s a search or whether it’s a reasonable search, but if we address our last argument which is that where police have a right to stop a car initially, may they check the car, perform a visual frisk, for purposes of finding out whether there’s a gun, I think that’s something that the law would support.

I think it is reasonable even if he is out of the car, just as in a Belton situation, if an individual is handcuffed, the police still have the right to search the interior of the car if there’s been a full-blown arrest.

We suggest that it is a much more fluid situation when someone has not been subjected at that point to the full-blown arrest and handcuffed, can theoretically get back into the car if he wishes to take a desperate effort because he knows he’s got a gun there, and perhaps hurt the police.

And I would suggest, Your Honor, when we address… and I don’t wish you to dwell on it at great length now… the final portion of our argument, but I would point out that our final argument in the brief in which we argue that there should be a right, where there has been a lawful traffic stop, and there exists the right to execute a full arrest, if the police officers decided whether or not to do that there should be the right to do a visual frisk of the interior of the car to protect the police officers.

We make that argument because I think the statistics, the real world statistics, support it and I think the Court is very sensitive to police safety, both in the Belton context and in the context we’d ask it to be sensitive to, in sub-point “D” of our brief.

Warren E. Burger:

When they got him down to the station, the man in the car, wouldn’t they make a routine inventory?

Steven P. Kartagener:

Absolutely.

Warren E. Burger:

Of the contents of the car?

Steven P. Kartagener:

If the car is in fact seized and brought down to the station, they would absolutely under New York law do a routine inventory which under South Dakota v. Opperman would be completely proper under the circumstances.

Steven P. Kartagener:

So, in a sense there would be an inevitable discovery type of situation.

In fact, he’s arrested for something and brought down to the police station.

William J. Brennan, Jr.:

Yes, but I gather for this traffic offense, but for the gun in the car they would never have taken the car to the police station?

Steven P. Kartagener:

That’s not entirely clear, Your Honor, for the following reasons.

William J. Brennan, Jr.:

Ordinarily, if it’s… what was the traffic offense?

Steven P. Kartagener:

The traffic offenses initially observed, but not all of them, was speeding and driving with a shattered windshield.

William J. Brennan, Jr.:

Well, ordinarily don’t they just give you a ticket, or have I been lucky?

Steven P. Kartagener:

Well, I think we’ve all… perhaps we’ve all been lucky in that respect, Your Honor.

But the fact remains that under New York law there could have been an arrest.

William J. Brennan, Jr.:

Is that what usually happens?

Steven P. Kartagener:

I looked for statistics and I could not find any, on what usually happens.

But if I might answer it and say, this case is a little different, Your Honor.

In this case not only was there the speeding but there was an added, very important factor which we address in sub-point “C” of our brief and that is that he was also determined to be an unlicensed driver.

This individual, under no circumstances in this case… the gun had not been found, just like an intoxicated driver could not be allowed to get back into that car and drive it away.

There is a very substantial possibility that he would have been arrested as well because–

William J. Brennan, Jr.:

Did you say he was unlicensed, or he did not have his license?

Steven P. Kartagener:

–No, I think the record is rather clear, if you look at page 836 of the Joint Appendix, that he was an unlicensed driver and in fact received a summons for being an unlicensed driver, not that he wasn’t carrying it on that day but that he was an unlicensed driver, and that was the testimony at the suppression hearing.

When did they know that?

Steven P. Kartagener:

Excuse me, Your Honor?

Byron R. White:

When did they know that?

Steven P. Kartagener:

One of the police officers learned that at the scene.

He was speaking–

Byron R. White:

Didn’t he just know that he didn’t have his license?

Steven P. Kartagener:

–No.

The police officer at the scene, I believe was told by the defendant that he was an unlicensed driver.

I mean, he determined that he was unlicensed.

Byron R. White:

So, the police then would have had to get in the car anyway?

Steven P. Kartagener:

Well, that is one of our substantial points, Your Honor, and that is that even if you were to find that putting aside the larger argument, which is the general right of police officers to enter a car in conjunction with a routine traffic stop such as this, particularly when you’re dealing with an unlicensed driver, there has to be because of that status as a wrongful driver on the highways an expectation that if you are lawfully stopped there will have to be some police intrusion into the interior of your vehicle to pull it over, lock it, or tow it away.

Byron R. White:

There were two policemen, weren’t there?

Steven P. Kartagener:

There were two police officers.

Byron R. White:

And one of them got in the car without knowing anything except that this fellow had been speeding?

Steven P. Kartagener:

He… the word was “got in the car”.

If I might suggest, I don’t view this as a getting in the car.

Admittedly, there was a technical entry.

He opened the door and reached into it.

Byron R. White:

I’ll change my language, entered the car, when he entered the car.

Steven P. Kartagener:

Reached into it, if I may be permitted, Your Honor.

He reached into the car.

It’s not even a full body entry, as in some cases, and he did that before he learned that it was an unlicensed driver.

But his partner at the scene did know that.

We suggest, and it is one of the arguments in our brief, and it’s not such a novel proposition, there are certainly circuit court decisions from the circuit courts of appeal that accept the concept of police team knowledge.

It should be the knowledge, the combined knowledge of the state, made up of both police officers at the scene, that should govern the quantum of knowledge that the police officers had to justify the action.

If I might get back–

Thurgood Marshall:

Well, why do you use the computer?

Steven P. Kartagener:

–Excuse me, Your Honor?

Thurgood Marshall:

Why do you use the computer, if every officer’s got all of the information?

I don’t know what you are trying to tell us.

Steven P. Kartagener:

Well, I’m suggesting–

Thurgood Marshall:

That an officer in New York knows what all of the officers… how many officers do you have in New York?

Steven P. Kartagener:

–I see what Your Honor is saying.

I’m not suggesting that we’re going to give the knowledge of one police officer to the whole police department.

If I may, that’s not my point.

My point is the urge upon the Court an acceptance of what is called the police team knowledge.

That way, there are two police officers at the scene of an incident.

You don’t give them all of the knowledge of every police officer in New York City, but the combined knowledge of those two police officers should justify whatever action the State takes, and you should not have to parse out, that’s what this police officer knew, that’s what the other officer knew.

If I might suggest, we don’t have to accept that principle to say that this was a reasonable search under the circumstances.

I have argued, and I think legitimately, that it is not a search at all because there was no legitimate expectation of privacy in the VIN number or the information in it, nor could the defendant or respondent create a legitimate or reasonable expectation of privacy by allowing a piece of paper to cover that VIN number, just as the people in Oliver could not create a reasonable expectation of privacy by putting up “don’t trespass” signs.

Byron R. White:

I suppose if it had been the practice of the manufacturer to put the VIN number under the back seat… would you be making the same argument, that they just didn’t have any interest in the privacy of the VIN number, even if you had to get into the car and take out the back seat?

Steven P. Kartagener:

The answer, Your Honor, is that that could not be the decision of the manufacturer because by federal regulation it must be where it’s located in the dashboard, precisely for the reason that everybody can see it.

But if I may answer your question, if it’s under the hood, let us say, or in the back seat and there was a legitimate basis for checking the Vehicle Identification Number, yes, we would say that if police officers know that that’s where the Vehicle Identification Number is, they have the right to check it out once probable cause exists, and you do have probable cause here for the traffic infractions.

Byron R. White:

Well, on that basis you should just say that you can always search a car any time you stop somebody who is subject to an official arrest; as long as there’s probable cause.

You don’t have to arrest him.

Steven P. Kartagener:

That is one of our arguments, sort of, Your Honor, if I might say, and that is we don’t advocate rambling searches.

What we do say is this.

If there is probable cause to effect an arrest, as Your Honor pointed out, we do believe the police should have the right for a different reason to engage in a self-protective visual frisk, if you will, of the interior of the car.

If I might be permitted to, I would like to reserve the remaining time that I have for rebuttal.

Thank you.

Warren E. Burger:

Mr. Cogan.

Mark C. Cogan:

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

I would like to commence my argument by responding to as question that was posed both by Justice O’Connor and Justice Stevens before the lunch break, and in doing so we would like to emphasize that it is our contention that the judgment of the New York Court of Appeals was decided on adequate and independent state grounds, both in the New York State Constitution, Article 1, Section 12 which was cited by the Court of Appeals in its decision in this case, in which that Court is used in a whole host of cases to declare a substantial independent right against unreasonable searches and seizures under New York’s Constitution, and also under Section 401 of the Vehicle and Traffic Law.

In its opinion rendered below, the Court of Appeals discussed the New York Vehicle and Traffic Law, Section 401, to determine whether in the case of an ordinary traffic violation, whether an officer has a right to search the car for the Vehicle Identification Number.

The Court of Appeals held that Section 401 gives the officer absolutely no authorization to conduct a search.

The correct procedure for an officer to follow when he wants VIN information, other information to identify the car, is for the officer to make a demand.

The officer has a right under Section 401 to demand the VIN from the motorist.

William H. Rehnquist:

Well, Mr. Cogan, if that were dispositive of the case, why did the New York Court of Appeals write all the rest of the opinion it did on the constitutional issue?

Mark C. Cogan:

The Court of Appeals addressed both the constitutional issues, state and federal, and the statutory issue, and the mere fact that the Court not only addressed constitutional but also statutory grounds for this search is not dispositive of the question, whether there were in fact adequate and independent state grounds.

William H. Rehnquist:

Does the New York Court of Appeals have any rule that it prefers to avoid constitutional decisions if a decision could be placed on a statutory basis?

Mark C. Cogan:

I don’t know of any such policy that has been enunciated in its cases, but quite often state courts will address both statutory and constitutional issues in a single opinion.

What the Court first addressed, it first addressed itself to the question whether this was a search that violated–

John Paul Stevens:

Mr. Cogan, does New York have a rule that if there’s no violation of the Constitution but merely an action in excess of statutory authority, that the exclusionary rule will apply?

Is there any such case?

Mark C. Cogan:

–The case that would come to my mind would be People against Marsh, decided more than ten years ago by the Court of Appeals, which was the case where the Court first enunciated the fact that in New York there is no authorization for a search upon an ordinary traffic stop.

And, in People against Marsh, the Court addressed itself to the question whether a search was authorized by the statute and it also considered whether the search was authorized under the Constitution.

It found the answer to both those questions was no, and so our answer would be that the search in violation of statutory or constitutional dictates mandates exclusion of the evidence.

John Paul Stevens:

But you’ve got violations of both, is what you’re saying?

We don’t know for sure whether they would have excluded if there had only been a statutory violation, and that’s why perhaps they had to decide the constitutional question in order to include the other one.

Mark C. Cogan:

What the Court of Appeals decided was that this was an unlawful search, and it decided that on three different grounds, each of which is an independent ground for decision, and in so holding the Court of Appeals had no choice other than to suppress the evidence.

Thurgood Marshall:

If the Court had said, we do this on the basis of the Constitution and our statute, we wouldn’t have this case?

Mark C. Cogan:

We would maintain that the Court of Appeals did say that, in effect, in its opinion.

Thurgood Marshall:

I didn’t–

Mark C. Cogan:

The Court may not have used those precise words.

Thurgood Marshall:

–Well, did you urge them to rule on the federals?

Mark C. Cogan:

Throughout the entire litigation of this case in the state courts, the defendant maintained that this search violated his rights under state and federal law.

Thurgood Marshall:

And you didn’t urge the federal?

Mark C. Cogan:

We urged both state and federal law.

Thurgood Marshall:

Well, why didn’t you argue just the state?

Mark C. Cogan:

The answer, Your Honor, Justice Marshall, is that we maintain that the search violated both state and federal law.

We saw no need to limit ourselves–

I understand.

Mark C. Cogan:

–to… now, if I may turn to the substantive issues addressed in this appeal, should this Court reach the Fourth Amendment issue framed by the Petitioner, we maintain that the Court should hold that Officer McNamee conducted an unreasonable search when he entered Mr. Class’s car in order to see the vehicle identification number, where Officer McNamee had absolutely no factual grounds to believe that the car was stolen.

Officer McNamee never stated the reason why he wanted to see the VIN.

He never suggested that he had any belief that the vehicle was stolen, and indeed under the facts of the case there could have been no such reasonable belief.

The only thing that Officer McNamee knew when he plunged into Mr. Class’s car was that this person had been stopped for driving five to ten miles per hour above the speed limit and that he had a cracked windshield.

Without even waiting to hear what Mr. Class disclosed to his partner, Officer Meyer, in the way of registration, the insurance documents for the car which Mr. Class produced and were in order, Officer McNamee proceeded straight to the car and went inside.

Officer McNamee did not wait to hear any communication from his partner, and since there was no communication between the officers at the scene of the stop, Petitioner’s argument that the collective knowledge of the officers is plainly without any merit.

This Court has held that one officer’s knowledge can be imputed to another officer only where there has been some kind of communication between the officers, or a directive, for instance from one police department to another police department, as the Court decided in Hensley.

William H. Rehnquist:

You say we held in Hensley that that was the only way it could be done?

Mark C. Cogan:

The only way that we have been able to find it in this Court’s decisions, that information can be imputed is where there has been communication.

William H. Rehnquist:

But your sentence could be confusing.

I think it’s one thing to say that the Court has held it may be done in this way, and has never held it may be done in any other way, and it’s another thing to say that the Court has held that it may be done in this way and only this way.

I take it, it was the former that you meant to say?

Mark C. Cogan:

That’s right, Your Honor.

There has never been a holding that mere collective knowledge is sufficient to give an officer authorization.

William H. Rehnquist:

Has there ever been a holding that it is insufficient?

Mark C. Cogan:

Exactly.

The intrusion into Mr. Class’s car plainly constituted search under this Court’s decisions.

Why did it constitute a search?

Because intruding into Mr. Class’s car, Officer McNamee made the physical entry and by doing so he was able to expose areas of the passenger compartment of the vehicle which would not have been visible to him without making that intrusion.

That is the basic definition of a search.

There can be no other interpretation as to that matter.

Mark C. Cogan:

Having conducted a search, and we’re not necessarily contending this was a full-blown search of the car necessitating probable cause, we’re not maintaining that the officer needed to have probable cause in order to make his intrusion.

All we would state–

Probable cause to do what?

Mark C. Cogan:

–To enter the car, probable cause to believe that the car was stolen.

Officer McNamee–

Byron R. White:

Or that it contained some–

Mark C. Cogan:

–Some contraband.

Byron R. White:

–Some contraband, or evidence of crime?

Mark C. Cogan:

We’re not maintaining that probable cause is the standard.

All we are stating is that when an officer makes such an intrusion into a car, exposes areas not otherwise visible to the outsider, that constitutes a search and he may not do so unless he has some factual basis for believing that there would be some contraband or some stolen car.

Thurgood Marshall:

As you read the record, he opened the door, right?

Mark C. Cogan:

He opened the door because he thought the VIN was on the door panel.

Thurgood Marshall:

He reached in for the paper?

Mark C. Cogan:

He leaned inside, reached for the papers.

Thurgood Marshall:

He never went in there, he never went in the car?

Mark C. Cogan:

He leaned into the car.

Thurgood Marshall:

He never went in there?

Well, he did put his rear end in there, did he?

Mark C. Cogan:

It seems that he put his head in the car, and shoulders, perhaps.

Thurgood Marshall:

His top end, then?

Mark C. Cogan:

I’m sorry?

Thurgood Marshall:

His top end, of his body?

Mark C. Cogan:

That’s right.

Thurgood Marshall:

And that’s as far as he went, when he saw the gun?

Mark C. Cogan:

Right.

Thurgood Marshall:

After he saw the gun did he have a right to search everything in reason, once he saw a felony?

Mark C. Cogan:

I would concede that.

Thurgood Marshall:

And the possession of a gun in New York is a felony?

Mark C. Cogan:

Once he saw the gun, and Mr. Class was certainly–

Thurgood Marshall:

He could search everything, couldn’t he?

Mark C. Cogan:

–Certainly, and if he had seen the gun as in Texas against Brown, if he had seen the gun without entering the car he could have seized it.

But he did.

Mark C. Cogan:

Under the plain view doctrine–

Thurgood Marshall:

He did, without entering the car.

Mark C. Cogan:

–In Texas–

Thurgood Marshall:

His eyeballs entered the car.

Mark C. Cogan:

–Well, the record shows, in our opinion, Your Honor, that Mr…. that Officer McNamee opened the door, leaned into the car, whatever part of his body that was in the car, the top part of his body if you will, was inside the vehicle because when he saw the weapon he saw it by looking down.

His head must have been inside the car.

Byron R. White:

You say that he could not have seen it from outside the car?

Mark C. Cogan:

Certainly there is nothing in the record.

Byron R. White:

That says he could, but–

Mark C. Cogan:

There is no support in the record for the proposition that this weapon could have been seen from outside the car.

–Suppose–

Mark C. Cogan:

Petitioners never–

Byron R. White:

–Suppose they hadn’t found the gun; all they found was the number which had been obscured and you couldn’t see it from outside, and suppose in a criminal prosecution later it became, that number became relevant.

Would that number have been admissible?

Mark C. Cogan:

–Would it have been relevant, had the–

Byron R. White:

No, no, not relevant.

Would it have been admissible?

Assume it had been relevant to some element of the crime that was charged.

Now, he couldn’t get that VIN number without getting inside the car.

Would you say that that would be also excludable?

Mark C. Cogan:

–As long as the officer had no right to enter the vehicle, the fruits of that search, the evidence that he obtained as a result of that intrusion, must be suppressed.

William H. Rehnquist:

Do you think then that the availability of a vehicle identification number to an officer depends on him having either reasonable suspicion or probable cause or something along those lines?

Mark C. Cogan:

Well, we would say that in order for an officer to make a physical entry into a vehicle, he has to have some factual grounds sufficient to suggest a reasonable possibility that the car is stolen.

William H. Rehnquist:

You don’t think Congress intended to make VIN’s regularly available to law enforcement people?

Mark C. Cogan:

In its regulations, in the federal regulations where manufacturers are required to place the VIN on a certain part of a vehicle, the reason why we have the regulations structured in that way is because it’s assumed that in many cases in VIN could be seen without making a physical intrusion.

Harry A. Blackmun:

What about looking through the windshield?

Mark C. Cogan:

Looking through the windshield without entering the vehicle at all, and that’s often what will happen.

Harry A. Blackmun:

So, as to that, you have no objection?

Mark C. Cogan:

No, certainly.

We do not maintain that an officer can’t see what’s in plain view.

William H. Rehnquist:

But it couldn’t be done in this case because there was a piece of paper over the VIN?

Mark C. Cogan:

In this case it so happened, and I’m sure that if Your Honors will notice cars you see parked on the street, you will see that in many cases vehicles have all kinds of scraps of paper in the base… we’re talking about in the base of–

William H. Rehnquist:

Should the driver be able to benefit from the fact that he obscures the VIN from a view that would not have amounted to a search?

Mark C. Cogan:

–Well, this would be my answer, there is nothing in the record here to suggest that this VIN was covered up intentionally.

It was at most inadvertent.

The Petitioner tries to make what he can as to whether it was intentional or negligent.

But, in fact, there is nothing in the record to suggest that this was anymore than–

Byron R. White:

Does the law require… does the law require the driver to reveal the VIN to an officer?

Mark C. Cogan:

–There is no regulation that prohibits a motorist from allowing a scrap of paper to settle on top of–

Byron R. White:

No, no.

What if the officer says, I want to get in your car to look at the VIN number.

Must the driver let him in?

Mark C. Cogan:

–This is addressed by New York State law.

The Legislature has determined that–

Byron R. White:

How about federal law?

Mark C. Cogan:

–I don’t know of any such statute, but under New York law, which we think is very relevant to this case and which the Court of Appeals addressed–

Warren E. Burger:

Where was the driver when the policeman put his head in the car?

Mark C. Cogan:

–Once Mr. Class was stopped for his five to ten miles an hour speeding violation, he walked… he proceeded, he exited his car, walked up to Officer Meyer, showed him… said,

“What can I do for you, Officer. “

showed him his registration, insurance papers.

He had closed the door after he exited the vehicle.

Warren E. Burger:

Well, get to my question.

Was the car empty when the policeman put his head in the car?

Mark C. Cogan:

Empty of what?

There were no other passengers.

Warren E. Burger:

Passengers, yes, that’s what–

Mark C. Cogan:

No, no other occupants.

Mr. Class was–

Warren E. Burger:

–If he had been sitting in the car, it would have been perhaps more normal, the officer might have simply said, “give me” whatever it was he was looking for and there wouldn’t have been any occasion for him to put his head inside.

Mark C. Cogan:

–That’s right, and that’s what, we maintain, is exactly–

Warren E. Burger:

It was an empty car.

Mark C. Cogan:

–is exactly what was wrong in this case.

Officer McNamee–

Thurgood Marshall:

You can’t give him a VIN.

Mark C. Cogan:

–Right.

Thurgood Marshall:

I thought that’s in the body, metal.

Mark C. Cogan:

It’s attached to the vehicle.

Thurgood Marshall:

It’s part of the vehicle.

Mark C. Cogan:

Correct, it’s on a–

Thurgood Marshall:

I mean, you can’t hand it out.

Mark C. Cogan:

–No, clearly you can’t.

The statute that the New York Legislature has adopted, as interpreted by the highest authority on New York law, the New York Court of Appeals, provides that an officer is to demand the information of the motorist.

He has no right to undertake a search for this information.

John Paul Stevens:

But the Court didn’t tell us what the officer does if the driver says,

“I’m sorry, I won’t tell you. “

Mark C. Cogan:

This is speculation, of course, but what might have happened had Officer McNamee asked, as he properly should have done, for the Vehicle Identification Number information, he… certainly, had Mr. Class refused him access to that information Mr. Class would have committed a further violation of the traffic law and could have received a summons.

John Paul Stevens:

Is there a statute that says you’ve got to give your accurate identification?

Mark C. Cogan:

There’s a statute that requires Mr. Class… the statute we’re talking about is Section 401, requires the motorist to give to the officer the registration and other documentation including the VIN number.

Byron R. White:

I thought I asked you a while ago, and I thought you said there was no such law?

Mark C. Cogan:

I’m sorry, maybe I didn’t understand your question.

Byron R. White:

The motorist is obligated the give the officer the VIN number?

Mark C. Cogan:

That is right, New York law, Section 401.

Byron R. White:

And you say the statute doesn’t allow… the New York courts have ruled that the law does not permit the officer to enter the car, is that right?

Mark C. Cogan:

That’s right.

Self-help is not an option.

Byron R. White:

Even if the driver refuses?

Mark C. Cogan:

It’s not clear whether the officer would have a–

Byron R. White:

But it is clear that if he refuses, he’s committed a crime?

Mark C. Cogan:

–He has not committed a crime.

He’s committed a violation of the Vehicle and Traffic Law, which is New York is not classified a crime.

Byron R. White:

And you couldn’t arrest for it?

Mark C. Cogan:

There is authorization for an arrest in a case of a traffic violation, and this may go back to Justice Brennan’s question earlier.

There is authorization under New York statutes for an arrest for the most minor vehicle traffic violation.

But, as the New York Court of Appeals has held repeatedly, an arrest is not the appropriate procedure for an officer to follow.

It is far… it is anything but inevitable for an officer to place a motorist under arrest for an ordinary traffic–

Sandra Day O’Connor:

Mr. Cogan, if there were a situation here where the officers had probable cause to place Mr. Class under arrest, would they then have the right to enter the vehicle?

Mark C. Cogan:

–Merely upon the existence of probable cause to arrest for a traffic violation, no, Your Honor.

Sandra Day O’Connor:

For some other violation?

Mark C. Cogan:

Mere probable cause to arrest is not a sufficient ground for making a search incident to arrest.

We have cases going back many years, that this Court has decided, which hold that the search incident to arrest power exists only where there has been a custodial arrest, not a mere–

Sandra Day O’Connor:

They certainly have the power to enter the car and inventory it under those circumstances, don’t they?

Mark C. Cogan:

–When–

Sandra Day O’Connor:

So, what’s the difference?

Mark C. Cogan:

–Under New York against Belton, of course, the officer has the power to conduct a search incident to arrest.

Byron R. White:

If he arrests.

Mark C. Cogan:

If he arrests.

That is the big Mr. Class would have been arrested for his traffic violation.

Byron R. White:

But there is plenty to believe that he had never been allowed to get back in his car?

Mark C. Cogan:

I’m not sure that’s correct, Your Honor.

Byron R. White:

They would have let him drive away without a license?

Mark C. Cogan:

It is not mandated that an officer place him under arrest under those circumstances.

Byron R. White:

I didn’t ask about that.

They may not have arrested him.

What if they said,

“Why don’t you just go ahead and walk home, we’ll take car of your car? “

Mark C. Cogan:

The car might have been secured right there and they would have awaited some family member to drive it away.

Byron R. White:

I would think they could enter the car, though, and turn the lights off and make sure the ignition was off?

Mark C. Cogan:

Even if they had not made an arrest?

Byron R. White:

Yes, if they just said,

“You can’t get back in your car, you don’t have a license. “

What about that?

Mark C. Cogan:

The mere fact that he didn’t have a license–

Byron R. White:

That means that he couldn’t drive away in his car.

Mark C. Cogan:

–Well, we would maintain that’s not necessarily the case, in New York at least.

I don’t know what the procedures are–

Byron R. White:

You mean under New York law, unlicensed drivers may drive?

Mark C. Cogan:

–There’s nothing saying that the officer’s required to take him off the road, as he would in a case where there’s an intoxicated driver who’s a positive menace to the others on the highway.

William H. Rehnquist:

But there’s no question that an officer has the authority–

Mark C. Cogan:

Absolutely.

William H. Rehnquist:

–to prevent him from driving?

Mark C. Cogan:

And it is our contention that the mere authority to place somebody on arrest has never been recognized as giving the power to conduct a search.

The arrest… the power to conduct a search incident to arrest enters into the picture only after there has been an arrest.

Byron R. White:

They could just issue him a citation for driving without a license, and they say, look, you can’t drive.

We’re not arresting you, we’re not going to make a custodial arrest but we’re certainly going to drive your car away and you can pick it up when some member of your family… we can’t leave this car on the highway so we’re going to drive it down to the police station, you can come and pick it up when you want to, have your mother do it, have your father… now, they certainly would be authorized to do that under the New York law, wouldn’t they?

Mark C. Cogan:

They were authorized to do that.

They had not taken custody of his car at the time of that search.

William J. Brennan, Jr.:

And then could they do an inventory search at the station house?

Mark C. Cogan:

Certainly, under Opperman.

William J. Brennan, Jr.:

In that circumstance?

Mark C. Cogan:

If this were an Opperman case where there had been a–

William J. Brennan, Jr.:

Not quite Opperman, in the case that Justice White put to you, they could drive it away down to the station house?

Mark C. Cogan:

–Had they taken his car into custody, it seems that they would have had the power to conduct an inventory search.

Byron R. White:

And even before an inventory, I suppose if the officers started to get in the car to drive it away, which you say he was authorized to do, and he happened to glance down and see the gun, he could seize the gun?

Mark C. Cogan:

It’s possible.

There are any number of scenarios that might have happened in this case.

Byron R. White:

Well, we’re talking about this case, not ten million other.

Mark C. Cogan:

And what happened in this case, Your Honor, is that without any information as to Mr. Glass’s licensed or unlicensed status, Officer McNamee went directly into the vehicle and at that point he–

Warren E. Burger:

Well, he didn’t enter the vehicle.

Warren E. Burger:

He put his head into the vehicle.

I’m trying to get these facts a little clearer and not slide over them.

So, when he approached the car, if the driver had been sitting in it, he surely would have had a right to say,

“Where is your VIN? “

“Where is it so I can see it? “

Could he see it without putting his head in the car?

Mark C. Cogan:

–Could he have seen it… well, had Mr. Class been seated in the car, let’s say, had the officer prudently told him to keep his hands in view, which is a recommended procedure,

“Please remove the piece of paper that’s covering up the VIN. “

as he had a right to do under New York law, he could have seen the VIN without making any intrusion into the vehicle.

Warren E. Burger:

And not put his head in the car?

Mark C. Cogan:

He wouldn’t have had to put his head in the car to see the VIN.

Warren E. Burger:

Where was it located?

Mark C. Cogan:

The Vehicle Identification Number is commonly found on a plate that is affixed to the lower base of the dashboard.

Warren E. Burger:

You say he could see that without putting his head in the window?

Mark C. Cogan:

Certainly, no question about it.

Byron R. White:

He could see it right through the–

Mark C. Cogan:

Right through the windshield.

A VIN is something that–

Byron R. White:

–But that’s only if the driver removed the piece of paper?

Mark C. Cogan:

–That’s right.

Byron R. White:

So that, if the driver had said,

“No, I’m not removing any paper at all. “

you say the officer could not have stuck his head in the car and removed the paper himself?

Mark C. Cogan:

Under New York law, it’s not clear what the officer’s remedy be had Mr. Class refused to remove the piece of paper.

We maintain that the mere refusal to remove the paper, the mere refusal to give the VIN information, does not give any reasonable suggestion that the car is stolen.

There are many other things these officers could have done, had they had a suspicion that that car was stolen.

There is no need in this case for the police to intrude into Mr. Class’s vehicle.

Warren E. Burger:

You have just conceded a few minutes ago, I think, in response to a some question, that they could have made him take a bus home or walk home, and taken the car down to the station.

Now, as Justice White suggested, one of his questions suggested, when the officer got in the car, right at that point isn’t it likely that he would have seen the gun?

Mark C. Cogan:

Under that scenario, it’s possible he could have seen the gun.

Warren E. Burger:

Suppose he didn’t see it there.

You have conceded too that when it got down to the police station they could have made an inventory search and perhaps they are required to make an inventory search?

Mark C. Cogan:

It’s possible that could have been done too.

Warren E. Burger:

Then what’s the problem?

Mark C. Cogan:

The problem, Your Honor, is the Mr. Class, the arrest, the inventory of the car, all of these things are very much speculation in this case.

There is no reason… there was not testimony in this case that the officers inevitably would have done, X, Y or Z.

Warren E. Burger:

How did the car get off the street?

Mark C. Cogan:

I’m not sure how it got off the street.

Warren E. Burger:

Do you think the officers let an unlicensed driver drive the car away?

Mark C. Cogan:

When Mr. Class was arrested for possession of the weapon the police took custody of the car.

But we certainly can’t look to the… in retrospective hindsight to look to the fact that he was arrested and therefore justify the original entry that was the cause of the discovery of that evidence.

In summary, Your Honors, we maintain that this case–

John Paul Stevens:

Mr. Cogan, if you’re summarizing, when and exactly at what point do you say the unlawful conduct occurred, when he opened the door or when he stuck his head in?

Mark C. Cogan:

–The unlawful conduct in this case occurred when Officer McNamee opened the door of the car.

At that point–

John Paul Stevens:

So, it would have been unlawful even if the VIN had been right–

Mark C. Cogan:

–That is right.

That is our position.

But of course, in this case Officer McNamee went further than that and leaned into the vehicle, disturbed papers on the dashboard.

One other point I’d like to make, Your Honors, is in rebuttal to the Petitioner’s contention that there is no expectation of privacy in a vehicle.

Now, this Court has held that a person does not have the same expectation of privacy in a car that he has in his home.

Certainly, we’re not contending that he has the same expectation of privacy there, nor has this Court ever held that there is no expectation of privacy at all in a vehicle.

People keep all kinds of very private things in their cars, even things, say, in a two-car family a husband might have a car and keep things in it that he wouldn’t be comfortable having his wife see.

There might be things pertaining to a medical condition–

John Paul Stevens:

–Mr. Cogan, when was the last time to your knowledge that this Court ever sustained a search of a car, ever upheld a search of a car?

Mark C. Cogan:

–When is the last time?

Yeah.

Mark C. Cogan:

I can’t honestly say, I don’t know Your Honor.

John Paul Stevens:

There have been a lot of car search cases in the last few years, haven’t there?

Mark C. Cogan:

And we maintain that under no decision of this Court has the action of Officer McNamee ever been justified.

Mark C. Cogan:

Lacking any articulable grounds for entering the car, we maintain that Officer McNamee conducted an unreasonable search in violation of the Fourth Amendment.

Should the Court reach the Fourth Amendment question, we would maintain that the judgment of the Court of Appeals be affirmed.

Also, of course, we maintain that this case is not even reviewable by this body, by this Court, because the decision rests on adequate and independent state and constitutional grounds, statutory and constitutional grounds.

Thank you very much.

Steven P. Kartagener:

Your Honors, if I may be allowed a reply, I think as the questions of this Court have pointed up to some extent, the Respondent brought the police action in this case on himself to some extent.

He allowed the VIN to be covered.

He chose to get out of the car and walk away from it.

My colleague… or my adversary, I should say, here, seems to suggest that the Fourth Amendment should be something that rewards a motorist for defeating the Congressional intent in having exposed VIN numbers, that if he chooses not to keep it exposed as expected by Congress the Fourth Amendment should rule it improper if a police officer merely reaches in to uncover the VIN.

I suggest… the silliness, I think of the New York Court of Appeals’ position that what the police had to do here was send the individual back into the car to move a piece of paper out of the way himself is pointed up and underscored by the fract that the police do have some right to be concerned about police safety, and as Justice Marshall and Justice Brennan pointed out in their dissent in the Michigan v. Long case, they thought that if we’re concerned about police safety once the individual’s out of the car, the most minimal thing to do is for the police officer to go into the car if he’s looking for a registration, once the motorist has told him where it is, and go to that certainly identifiable place.

Here, this police officer was not engaged in a rummaging search of the car.

He looked under no seats.

He went to the place on the dashboard, moving across open space, where he expected the VIN to be located, happened to look down and see a gun butt.

And, if I might respond to something Justice White spoke about, could the police officer even have seen it from outside, possibly?

Yes.

Why?

Because it’s a settled fact in this case, the gun butt was out one inch from under the seat.

Now, it’s true that this police officer didn’t notice it at the time, although a pedestrian on the other side of the car might have been able to, and I think Texas v. Brown says the police will have the same rights as any pedestrian on the street.

The police officers might have been able to see it from outside the car.

So–

What time of day was it?

Steven P. Kartagener:

–Excuse me?

What time of day was it?

Steven P. Kartagener:

It was about 4:30 in the afternoon.

It had rained earlier in the day but it was daylight out, no flashlights necessary.

Had he been looking for a gun he might have seen it.

It happened to pop up, if you will, or jumped out and bit him as he happened to be reaching across, but it really was sticking out in plain view from under the seat.

William H. Rehnquist:

Well, plain view from where?

Steven P. Kartagener:

Plain view, I would certainly… once the door was opened, we believe, reasonably… but it would seem pretty obvious from outside the car had the police officer been looking for it.

I say this, Justice Rehnquist, because there is a finding of fact in this case that out from under the seat, towards the front of the car by at least one inch, was the observable, identifiable gun butt.

William H. Rehnquist:

That doesn’t mean that you could see it just standing up outside the car, looking in the plane of vision that you would be looking through a window?

Steven P. Kartagener:

Quite frankly, Your Honor, to the extent that you asked me can it be done, I think it can be done.

To see if it could be done I went to a car, I mean to see what the views were, I went to the other side rather than the driver’s side, looked in the open window, and you really can’t see everything coming out an inch from under the seat of a car.

But, the Court doesn’t have to determine that in this case.

I just suggest that it was not the type of rummaging search that the Court need believe it implicates the Fourth Amendment.

It was really sticking out from under the seat.

Thurgood Marshall:

Wouldn’t it be reasonable for me to assume that if that were true, the policeman would have so testified?

Steven P. Kartagener:

Well, I think what he testified, Your Honor, was that he wasn’t looking for a gun at that time.

He was just looking to check the VIN number and happened to notice the gun as he was reaching in.

Thurgood Marshall:

Do you characterize that he could see it from the outside?

Steven P. Kartagener:

Well, no.

What I’m suggesting–

Thurgood Marshall:

That he did–

Steven P. Kartagener:

–He approached it from the driver’s side, Your Honor.

All I’m saying–

Thurgood Marshall:

–So, now you are going to testify to it?

Steven P. Kartagener:

–No, what I’m saying, Your Honor, is that just a viewing from the other side might have allowed for it, and all I’m suggesting is that this Court said in Texas v. Brown, the fact that a police officer may be able to twist his head and see something on an angle puts him in the same position as any pedestrian.

Thurgood Marshall:

But, your problem is to get the officer into the car to look at the VIN number.

Steven P. Kartagener:

And we suggest that this was a very–

Byron R. White:

If he can go in to see the VIN number, why, he could notice a gun in plain sight, couldn’t he?

How do you get him into the car to see the VIN number without arguing one of your other arguments?

Steven P. Kartagener:

–Well, I think the way he legitimately opens the door to look at the VIN numbers because looking at that VIN number was part and parcel of the probable cause to deal with the traffic infractions that he observed.

Had the paper not covered the VIN, he might have noticed it from outside.

Byron R. White:

Every time you make a traffic stop you should be able to check the VIN number?

Steven P. Kartagener:

Absolutely, Your Honor.

We think that’s clear, and we think there was a very reasonable–

Byron R. White:

Even if it entails entering a car?

Steven P. Kartagener:

–Well, I suggest that you don’t have to decide the broad issue, if it’s anywhere in the car, but certainly when it’s on the dashboard.

Yes, I would suggest that in any case where a VIN number’s covered on the dash, and the driver stepped away from the car, it’s not necessary for the police under Mimms to bring the driver back to the car, to open up the door and step in, and indeed they probably would have seen the gun at that point anyway.

So, in closing, I’d simply like to say that we would like the Court to find, as we think that it should, that the actions of the police officers in this case were so eminently reasonable, and the ruling and opinion of the New York Court of Appeals was not reasonable, and therefore that you should reverse that judgment of that Court.

Thank you very much.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.