Texas v. Brown – Oral Argument – January 12, 1983

Media for Texas v. Brown

Audio Transcription for Opinion Announcement – April 19, 1983 in Texas v. Brown

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Warren E. Burger:

We will hear arguments next in Texas against Brown.

Mr. Marshall, you may proceed whenever you’re ready.

C. Chris Marshall:

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

This case is before the Court on a writ of certiorari directed to the Court of Criminal Appeals of Texas.

In 1979 respondent Clifford James Brown was charged with a second degree felony offense under state law of possession of a controlled substance.

This charge stemmed from an incident in which respondent was found in possession of a tied-off balloon containing heroin.

Respondent moved to suppress the heroin on the grounds that it was the product of an illegal warrantless seizure, and after an evidentiary hearing in the trial court, the motion to suppress was denied.

Respondent then entered a plea of nolo contendre to the charge, reserving under state procedures his right to appeal the seizure question; and he was sentenced to four years’ imprisonment.

On appeal a three-judge panel of the Court of Criminal Appeals of Texas reversed the conviction, holding that this warrantless seizure of the knotted balloon violated the plain view doctrine as announced in Coolidge v. New Hampshire.

The theory below was that for the contraband nature of that balloon to have been “immediately apparent” to the officer as required by Coolidge, the officer had to know what was inside the balloon.

And in the opinion of the Court of Criminal Appeals, because this balloon was opaque, the officer obviously could not see inside the balloon and could not have known what was inside.

Therefore, they found the seizure to be improper.

The State of Texas filed a motion for rehearing or a request for rehearing, but that motion for leave to file was denied by the en banc court, three of those nine judges filing a written dissent to that.

It was the belief of these dissenters that probable cause, not knowledge, was the standard to which the seizing officer was held, and that when proper regard was given to the inferences that this experienced officer was able to draw when he saw the balloon, probable cause was evident, and the seizure was proper.

To amplify on the facts of the seizure, on June 18th, 1979, Fort Worth police officer Tom Maples and other members of the Patrol Division had set up a roadblock-type of driver’s license check.

They were checking, stopping each vehicle that came through this roadblock, checking the drivers for driver’s licenses and checking the vehicles for expired inspection stickers or registration and license plate violations.

They were not checking the drivers for outstanding warrants.

They were not looking for any particular individual.

They did not have any members of the narcotics detail with them.

It happened to be Officer Maples who stopped respondent’s vehicle when he came through this checkpoint.

When Officer Maples asked the respondent to exhibit a driver’s license, the respondent reached in his right front pants pocket, fumbled around in that pocket long enough to alarm the officer, and caused him to shine his flashlight into the car, this incident having occurred around 11:00 to 11:15 at night, and when the respondent withdrew his hand from that pants pocket, the officer could see him holding two items.

Between his thumb and index finger he was holding a folded dollar bill, but between his two middle fingers where I’ve placed this box, he was holding a small, green, knotted, opaque, tied-off balloon.

The officer described it as being tied about a half inch from the end, and when mashed down it was approximately one-eight of an inch thick.

The officer then saw the respondent drop this balloon alongside his leg onto the car seat.

The respondent reached over and opened the glove box of the vehicle, presumably still trying to find the driver’s license.

The light in that box came on, and inside there the officer could see several items.

He saw what he described as a lot of loose white powder, a bag of balloons apparently just as they had come from the store, several small, empty plastic vials.

The officer, having been experienced in this sort of thing, formed the conclusion that there was some sort of narcotic substance in that green balloon he had first seen, so he asked the respondent to step from the car and move to the rear of the vehicle, which respondent did closing the door behind him.

The officer could then see inside the vehicle still, saw the green balloon on the car seat where the respondent dropped it, and he reached in and picked up the balloon, noticing at that time that it contained some sort of powdery substance inside.

The record also shows that this officer was a five-year veteran of the police department.

C. Chris Marshall:

He had taken part in several arrests where such balloons had been seized and found to contain narcotics.

He had made one such arrest himself in the previous year in which eight or nine such balloons had been recovered.

He had talked with his fellow officers about the fact that narcotics were often packaged this way.

He had talked with drug users about the use of milk sugar, which is apparently what this loose powder was.

He knew from his experience what those empty plastic vials could have been put to.

And it was based on this, the circumstances of seeing this balloon and his experience with the narcotics trade, that caused him to believe the balloon contained narcotics, caused him to seize it, and caused him then to place respondent under arrest for possession of a controlled substance.

Warren E. Burger:

Now, what did you say was observed in the glove compartment?

C. Chris Marshall:

Three classes of items, Your Honor.

Several empty plastic vials… I’m not sure if that’s pill bottles or test tube type of vials… a bag of balloons, apparently a bag just as they had come from the store… these balloons were empty… and he also saw the balloons, empty plastic vials and loose white powder.

Now, at that time in the record the officer didn’t further describe this powder, but after the arrest he conducted an inventory of the vehicle, found a bottle of milk sugar in the back seat, and given the record, it appears that milk sugar was also what this loose white powder was.

There’s no evidence in the record that this additional powder was itself a controlled substance.

Warren E. Burger:

Any firearms discovered?

C. Chris Marshall:

No, Your Honor.

There was some marijuana also found in the back seat, but no firearms.

Byron R. White:

Well, Mr. Marshall, could I ask you, when was the decision in the Court of Criminal Appeals?

C. Chris Marshall:

It was in the spring of 1981.

The panel decision was on March 31st.

We filed a motion for leave to file for rehearing, which under local practice is accompanied by the motion itself.

That was denied on July 1st, 1981.

Byron R. White:

Did you… had Bolton been announced at that time?

C. Chris Marshall:

My recollection is that it may have been announced on the very same day, on July 1st.

Byron R. White:

Well, what do you make of this statement in the… in the Court of Appeals… in the Court of Appeals opinion:

“We do not here question either the validity of the officer’s initial stop of appellant’s vehicle as part of a license check nor the propriety of the arrest, since appellant failed to produce a driver’s license. “

C. Chris Marshall:

I believe what they were talking about there is what I would refer to in a moment as the so-called prior lawful intrusion aspect of the plain view doctrine.

Byron R. White:

I know, but they say they do not… they apparently say he was legally arrested.

C. Chris Marshall:

Yes, Your Honor.

I–

Byron R. White:

Well, if he was legally… if he was legally arrested at the time, what kind of a search of the vehicle would have been authorized under Bolton?

C. Chris Marshall:

–Well, certainly under New York v. Belton, a search of the entire–

Byron R. White:

Or Belton, yes.

C. Chris Marshall:

–The entire passenger compartment.

Byron R. White:

Including… including the balloons.

C. Chris Marshall:

Yes, Your Honor, I think that’s right.

Byron R. White:

Well, do we… isn’t that the end of the case if he was legally arrested?

C. Chris Marshall:

Well, I believe the facts didn’t develop that way, at least the way the testimony was developed.

Byron R. White:

Well, the case comes here to us with the Texas court having said he was legally arrested.

C. Chris Marshall:

Well, what I’m trying to say is that the officer’s testimony was… and, of course, there is always that dispute about when the formal arrest occurred… was that he did not place the respondent under arrest.

Byron R. White:

You don’t have to find facts.

The Court of Appeals found the facts.

C. Chris Marshall:

I realize that.

I’m just saying that I… as I understood what they were saying is that… and from the record… the arrest was not thought to have occurred until after the balloon had been seized.

William J. Brennan, Jr.:

Well, then, I suppose… how would you explain their setting aside the conviction if they had found he was legally arrested?

Because they thought at that time that the search of the balloon was invalid, even if he was legally arrested.

C. Chris Marshall:

Well, another thing, if I could clarify this, this respondent has–

Byron R. White:

Because Belton came down on the same day.

C. Chris Marshall:

–This respondent has never raised, nor did the Court of Criminal Appeals address the actual search inside the balloon but merely the seizure of it, which I believe took place when the officer reached inside the car and when he determined that there was some powder in the balloon.

According to the officer’s testimony, the arrest only occurred I suppose seconds later when he now had decided, the officer had decided this must contain some sort of narcotics in it, and told the respondent he was under arrest for possession of a controlled substance.

William H. Rehnquist:

I wonder… excuse me.

Were there two different arrests or an arrest for two different offenses, one a traffic offense and the other for the drug offense?

C. Chris Marshall:

The officer did testify that he issued a ticket for no operator’s license, the respondent never having produced one.

And it wasn’t developed in the record whether he considered that to be the basis of a custodial arrest.

That wouldn’t–

William H. Rehnquist:

Is there any doubt as to which arrest the Texas Court of Appeals was talking about in its opinion when it says we don’t doubt the validity of the arrest Are they talking about the drug arrest?

Well, they’re saying–

C. Chris Marshall:

–That is certainly what I thought, Your Honor.

Byron R. White:

–They refer… they refer to the fact that we do not question the propriety of the arrest since appellant failed to produce a driver’s license.

That sounds like it’s a traffic arrest.

C. Chris Marshall:

Well, as I say, I know they said that, and I think they also were saying when they don’t question the stop that they were assuming under Delaware v. Prouse, the initial stop of the vehicle was proper.

The case was litigated by the defense at the trial court level on whether the seizure of the balloon was valid under the plain view doctrine.

Byron R. White:

Is failure to produce a driver’s license ever an occasion for a custodial arrest?

C. Chris Marshall:

Under our state law it would be possible to make a custodial arrest for that.

I don’t think it would normally be the practice by any means, but it certainly would be possible.

Byron R. White:

Okay.

Thank you.

C. Chris Marshall:

Yes.

Warren E. Burger:

Now, you referred to the panel having considered it and then another step in there.

Was Belton called to the attention of the court at the time reconsideration or rehearing was sought?

C. Chris Marshall:

No, Your Honor, it wouldn’t have been, because as I said, my recollection is Belton was decided either on the same day or one day after the Court of Criminal Appeals–

Warren E. Burger:

Yes, but I thought you said there was some effort after that to get reconsideration by the Court of Appeals.

C. Chris Marshall:

–Yes, Your Honor.

I filed a state’s motion for rehearing, but at the time I filed that Belton had not been decided.

Warren E. Burger:

I see.

C. Chris Marshall:

When they declined to hear the case, under state procedures we had no ability to make a second motion for rehearing.

And again, as I say, the Court of Criminal Appeals decided this under the plain view doctrine.

And in fact, one of the points I had wanted to make later is that given a slightly different timing, a slightly different approach by the Court of Criminal Appeals, perhaps this seizure could have been justified under Belton, even under Ross, or perhaps under South Dakota v. Opperman as an inventory of the vehicle, which probably was going to have taken place.

We think that underscores the anomalous nature of this decision and shows what a disadvantage law enforcement officers are put to in the State of Texas because of the view of the plain view doctrine established by the Court of Criminal Appeals.

Warren E. Burger:

Ordinarily isn’t an inventory process something that occurs after the vehicle and the person have been taken to the police headquarters?

You don’t make inventory… inventories out on the street, do you?

C. Chris Marshall:

There is some testimony about this in our record indicating that Fort Worth officers make an initial quick inventory and fill out what they called a record sheet.

Byron R. White:

Well, that’s after… that’s after you’ve got some business to do it.

C. Chris Marshall:

Yes.

Byron R. White:

Like having made an arrest, which requires probable cause.

C. Chris Marshall:

Yes.

Thurgood Marshall:

Mr. Attorney General, if I can go back a little, do I understand your position to be that this man was stopped and the officer asked him for a license, and he reached in his pocket and said I don’t have a license but I’ve got an illegal drug and a dollar bill?

C. Chris Marshall:

That is what he brought out of his pocket, Your Honor.

And I suppose–

Thurgood Marshall:

I just wanted to be sure I understood you.

C. Chris Marshall:

–I suppose it’s an equal inference from the record whether he was trying to get the balloon out of his pocket because he was afraid the officer might come across it, or if it was just sheer bad luck on his part that it became wedged in his hand when he may have legitimately been looking for a license.

Perhaps he thought this dollar bill was his license, and the balloon just accidentally on his part became wedged between his fingers.

Thurgood Marshall:

You mean he was going to bribe the officer with a dollar?

Thurgood Marshall:

[Laughter]

C. Chris Marshall:

No, Your Honor.

I’m saying I think perhaps since it was described as a folded dollar bill, he might have felt that in his pocket and thought that was a driver’s license he was about to drag out of his pocket and not a folded dollar bill.

Thurgood Marshall:

Well, according to you he never did have a driver’s license.

C. Chris Marshall:

No, Your Honor, he never produced one.

Thurgood Marshall:

So he wasn’t reaching for a driver’s license.

C. Chris Marshall:

Assuming he was consciously aware that he didn’t have one, I think that would be true.

I don’t know.

Thurgood Marshall:

I would think people are consciously aware of what they have and what they don’t have in their pockets.

C. Chris Marshall:

Well, I would think most of the time, but I can’t read the mind of this respondent.

John Paul Stevens:

May I ask you a question about your theory of the plain view doctrine?

Let’s take the case away from the automobile because it raises Belton and all these other questions.

Say this happened in an airport, and the man had been asked to show his ticket.

He reached in his pocket, and he pulled out by… say inadvertently a balloon just like this and he at the same time had his luggage going through the detector, and they say exactly what they saw here.

It would be your view that they could just seize the balloon?

C. Chris Marshall:

Yes, Your Honor, that’s right.

John Paul Stevens:

And is that because the person seeing the balloon has probable cause to believe its contents are contraband?

C. Chris Marshall:

Yes, Your Honor.

The issue we see in this case gives this–

John Paul Stevens:

All right.

Let me take you one step further.

Say they saw all that, and then he put it back in the suitcase and then carried it down the way toward the plane.

You now know that within the suitcase… you have probable cause to believe within the suitcase there’s this contraband.

Would you have the power to seize the suitcase and open it because it’s in plain view.

C. Chris Marshall:

–Your Honor, I think they would have the power to seize the suitcase.

Our position is that this phrase in Coolidge v. New Hampshire about the contraband nature of the item being immediately apparent means probable cause.

And so in your example I think they could seize the suitcase.

John Paul Stevens:

Well, here did they also open the balloon?

C. Chris Marshall:

At some point they certainly did analyze–

John Paul Stevens:

Without a warrant.

C. Chris Marshall:

–Yes, Your Honor, as far as I know.

John Paul Stevens:

Then why couldn’t you open the suitcase?

C. Chris Marshall:

The only reason I hesitate there is because of the… this Court’s so-called container cases… Chadwick and Sanders.

John Paul Stevens:

Well, that’s exactly the point of my question.

Why isn’t the balloon a container?

C. Chris Marshall:

Your Honor, it may be.

I’m not positive.

It may be.

But again, I want to emphasize the only question the respondent has ever brought up is the seizure of the balloon–

John Paul Stevens:

I understand.

C. Chris Marshall:

–Not the opening of it.

That’s… it’s a very narrow case in that sense.

He never brought that issue up.

In fact, the trial court–

John Paul Stevens:

Well, is it your position that a law enforcement officer may seize a container whenever the container is in plain view and he has probable cause to believe the container has contraband within it?

C. Chris Marshall:

–Yes, sir.

That would be our–

John Paul Stevens:

That’s your position.

C. Chris Marshall:

–Yes, sir.

As I say, Coolidge v. New Hampshire talks about immediately apparent contraband seizable evidence.

And the problem we see with the Court of Criminal Appeals opinion is that they said Officer Maples had to know what was inside.

We think the standard was probable cause.

I don’t think there’s any issue here on the so-called prior intrusion or the inadvertent discovery.

And the only clarification and correction there we seek is that “immediately apparent” means “probable cause”.

We think that is supported by many of this Court’s cases, although obviously never exactly answered.

Warden v. Hayden speaks in terms of probable cause to seize an item.

Colorado v. Bannister, a pro curiam opinion only one term ago, talked about seizing items in an automobile because the officer when he saw these lug nuts and wrenches in the car recognized them as meeting the description of property that was stolen and which he had just received a broadcast about.

This Court said because he had probable cause to seize them, he could do so without a warrant.

We think that’s exactly the situation here.

Again, I take no position, and I personally obviously don’t know what the answer would be if this were a matter of going inside the balloon.

C. Chris Marshall:

But we don’t even know for sure in this record–

William J. Brennan, Jr.:

Well, without regard to Belton, if there was probable cause, as your Court of Criminal Appeals said, and the propriety of the arrest, that was on probable cause, could they not have… couldn’t the officers have seized the balloon without regard to what its contents were?

C. Chris Marshall:

–Well, I think they would have had to have had probable cause to think it was in fact seizable.

I think Belton, had it applied, had the Court of Criminal Appeals thought the arrest had already occurred, would have allowed the officers to search the vehicle, presumably to retain any item–

William J. Brennan, Jr.:

Well, I… I… I… I just wonder without regard to Belton.

If there was probable cause for arrest in these circumstances would there not have been… would not the seizure of the balloon have been proper as incident to the arrest?

C. Chris Marshall:

–Well, I suppose that brings up kind of an interesting problem again as was alluded to earlier: what did the Court of Criminal Appeals mean by the arrest.

If they thought it related to the no operator’s license violation, again, that might have gotten them in the car, but presumably they would have had probable cause to seize it.

If they thought it was probable cause to arrest for a drug violation, then we have the curious result that although they had probable cause to arrest, the Court of Criminal Appeals thought they didn’t have probable cause to seize.

Again, I can see all the questions.

Thurgood Marshall:

But the search was made when he was at the back of the car.

C. Chris Marshall:

The seizure of the balloon was, yes, Your Honor.

Again, I–

Thurgood Marshall:

He moved to the back of the car.

C. Chris Marshall:

–Yes.

Yes, sir.

Thurgood Marshall:

So there was nothing in that car that he could have touched.

C. Chris Marshall:

No.

In fact, the officer was clear that he didn’t fear for his safety or the destruction of those items.

Thurgood Marshall:

Nothing that man could do in the back of the car.

C. Chris Marshall:

I wouldn’t think so.

Thurgood Marshall:

Well, it’s my understanding that in Texas anybody with a balloon is subject to arrest.

C. Chris Marshall:

No, Your Honor.

Another problem we see–

Thurgood Marshall:

Well, what else do you have to have in addition to the balloon?

C. Chris Marshall:

–Well, we think you have to have probable cause, and it’s–

Thurgood Marshall:

Like what?

C. Chris Marshall:

–Pardon me?

Thurgood Marshall:

Like what?

C. Chris Marshall:

Well, in this case the unusual nature in which this balloon was brought out of his pocket and, in our view, discreetly or surreptitiously dropped along his pants leg onto the car set; the distinctive knotted nature of this balloon which the officer said he associated with narcotics; and then what we think are obvious narcotics packaging items in the glove box… the milk sugar, the powder, the plastic vials, the bag of balloons.

C. Chris Marshall:

And we think, as Chief Justice Burger’s opinion in U.S. v. Cortez made clear, probable cause to detain, to seize has to be evaluated based on all the circumstances which the officer sees, and including the experience he has and the inferences he can draw based on that.

Thurgood Marshall:

Well, I don’t… the experience he has in balloons?

C. Chris Marshall:

Well, that is one thing, Your Honor.

The record is replete with testimony of what he associated with balloons, and yet the Court of Criminal Appeals would give it no legal weight.

It’s not even mentioned in their opinion.

We think that standing by itself is error under Cortez.

Thurgood Marshall:

I’m not interested in that.

I’m just interested in if I happen to be in Texas and I have a balloon and I’m driving, I’m subject to arrest.

C. Chris Marshall:

No, Your Honor.

I don’t think on the facts that you’ve stated that would be true.

Again, we say it’s all the circumstances.

I would think, for example, an individual all by himself, one balloon, probably inflated–

Thurgood Marshall:

Well, he was all by himself, wasn’t he?

C. Chris Marshall:

–Well, all by himself in terms of another person, but not all by himself in terms of narcotics packaging paraphernalia in the glove box.

We’re not saying that this is a case where a police officer goes up to a children’s birthday party and starts arresting every child with a balloon in his hand.

But this is an unusual balloon… knotted a half-inch from its tip, all this material in the glove box.

Thurgood Marshall:

Let me ask you, have you ever knotted a toy balloon?

C. Chris Marshall:

I have.

I don’t–

Thurgood Marshall:

Well, I thought so.

You didn’t consider yourself violating the law, did you?

C. Chris Marshall:

–No, sir.

I haven’t have heroin inside those balloons either.

Thurgood Marshall:

I know.

C. Chris Marshall:

And I didn’t have all the other items in the glove box.

I didn’t try to drop it alongside my pants leg when the officer was asking me for a license.

I realize in some sense this is almost a humorous case because at least in our view–

Thurgood Marshall:

It’s humorous four years?

It’s humorous?

C. Chris Marshall:

–Humorous on the facts of this seizure, that it seems, in our view, which we hope will prevail but which, of course, is a matter for the Court to decide, that this was so clearly probable cause; and yet, the Court of Criminal Appeals said the officer had to know what was inside the balloon, says nothing about the officer’s testimony concerning his experience with this very type of balloon, everything else.

C. Chris Marshall:

It just seems to us to be clear error.

It seems to me that they have held the officer to a higher standard under the plain view doctrine than any decisions of this Court seem to indicate.

John Paul Stevens:

I just wonder if this is really a plain view case.

You’re not relying on the balloon itself giving you an adequate basis; you’re relying on these other circumstances… what’s in the glove compartment and all that.

And you say all of those facts add up to probable cause to arrest him.

C. Chris Marshall:

Yes.

John Paul Stevens:

And then you say… but you’re really not saying that there was an item all by itself in plain view that was subject to seizure.

C. Chris Marshall:

Well, I suppose this balloon in context is an item that’s subject to seizure.

I almost hate to raise it because it again brings up another question that’s not exactly raised here, but that would this Court’s again container cases, Chadwick and Sanders.

John Paul Stevens:

Well, that’s… that’s exactly what’s troubling me.

It seems to me that your argument… it… it’s… would be the same case if we had a briefcase in an airport and a lot of extraneous facts that give you probable cause to believe the briefcase has something, some counterfeit money in it.

Your view is that that’s a plain view case.

C. Chris Marshall:

Your Honor, I believe that’s true.

John Paul Stevens:

Even though you can’t see the counterfeit money, and here you can’t see the substance.

C. Chris Marshall:

To the extent–

John Paul Stevens:

You don’t want us to analyze it as a container case.

C. Chris Marshall:

–The reason I don’t want it analyzed as a container case or don’t think it should be is because the container cases, Chadwick and Sanders and at least whatever dicta is left in Robbins, are ones dealing with the entry inside the container, not the seizure of it.

Because as I understand those cases, all proceed on the assumption that the seizure of that container would have been permissible on probable cause.

John Paul Stevens:

Well, but… but do you concede that it was wrong to take a look inside the balloon here?

C. Chris Marshall:

No, I don’t.

I don’t–

John Paul Stevens:

Well, then–

C. Chris Marshall:

–Concede that.

It’s just not raised.

It never has been raised by the defendant.

The record doesn’t even indicate for sure, for certain when the balloon was opened.

I know in my brief I said when the police chemist opened it, and after reading that over I realized that was an unconscious assumption on my part.

The record is clear that Officer Maples did not open it on the scene, but beyond that, neither side developed when it was opened.

And therefore, it’s the mere seizure of this balloon is what’s at issue here.

John Paul Stevens:

–And under your view, the plain view doctrine applies whenever a container which is in plain view is… probably contains contraband.

C. Chris Marshall:

As far as the mere seizure of the container is concerned, I believe that would be our position.

Byron R. White:

That’s just surplusage isn’t it really?

You don’t mean to just rely on plain view, if that’s your thesis.

You just say any time you’ve got probable cause to believe a container has contraband in it, you can hold it, seize it and hold it at least long enough to get a warrant.

C. Chris Marshall:

Well, I know this Court has–

Byron R. White:

That’s all you really need to say.

You don’t need to talk about plain view, do you?

C. Chris Marshall:

–Well, I know there is even to me some indication in this Court’s cases whether plain view is an independent basis, or if Your Honor’s suggestion would completely cover the waterfront, so to speak.

Warren E. Burger:

Well, doesn’t Belton take care of that?

C. Chris Marshall:

Again, had this case been litigated differently, the facts turned out slightly differently, had the Court of Criminal Appeals approached it from a different manner, it possibly on these precise facts could have been held… could have been decided as a search incident to arrest where the… you search the interior of the vehicle when you arrest the occupants.

Byron R. White:

Do you think Belton applies… let’s suppose that I stop a… well, in Texas an officer stops a person for speeding and gives him a ticket.

And… and he says well, I’ve stopped you and I’m giving you a ticket, and now I’m going to search the car and all of the containers in it.

Do you think Belton permits that?

C. Chris Marshall:

Well, not Belton.

I believe Belton would be limited to the passenger compartment.

Byron R. White:

Well, that’s what I mean.

I mean would just giving a ticket for speeding justify the search of the entire passenger compartment and any containers in it?

C. Chris Marshall:

The way Belton sits right now I would say so, assuming a custodial arrest were made for the speeding and it’s transported to the station.

Byron R. White:

Well, I didn’t say a custodial arrest.

I just said they gave him a ticket.

C. Chris Marshall:

Well, I’m sorry then, Justice White.

Byron R. White:

Well, they stopped him, and they said you just wait here; I’m going to give you a ticket, and also I’m going to search your interior of your car.

C. Chris Marshall:

Then I don’t think merely giving a ticket would authorize a Belton type of search of the vehicle.

I certainly don’t.

It would have to be a custodial arrest and not just–

Byron R. White:

Would you call that giving him a ticket an arrest?

C. Chris Marshall:

–I don’t believe so, at least not in the sense–

Byron R. White:

All right.

The Texas Court of Criminal Appeals called whatever happened here with respect to the driver’s license an arrest.

C. Chris Marshall:

–Apparently so.

William H. Rehnquist:

Well, certainly if you’re giving somebody a ticket there’s some… there’s some element of seizure, isn’t there?

You don’t let a person simply drive away when the officer goes up and says look, I’m going to write a ticket for you.

C. Chris Marshall:

Yes, Your Honor.

That–

William H. Rehnquist:

You’re not free to drive away.

C. Chris Marshall:

–That, of course, is why I was hesitating.

I know there is something in the nature of a seizure.

Whether it’s the type of arrest that invokes Belton is what I’m not sure of.

If I could, I’d like to reserve the remainder of my time.

Sandra Day O’Connor:

Mr. Marshall, you didn’t mention, I believe, the independent state ground issue in your discussion.

C. Chris Marshall:

Very well.

Let me mention that very briefly as opposed to on rebuttal.

The defense has conceded that probable cause is a standard, but instead says, or to get around that says this was decided on state law grounds.

The problem I see with that position is that the Court of Criminal Appeals at the outset cited to and quoted from Coolidge as the controlling authority under the plain view doctrine.

It did not cite to state law anywhere in its discussion of the merits, and we think under Oregon v. Hass, Delaware v. Prouse, and most recently Oregon v. Kennedy, the citation to this Court’s decision in the absence of citation to state law clearly showed that this was not really based on state law grounds.

Whether it could have been, which is what the respondent actually says, I don’t know, but in this case it simply was not based on state law.

Sandra Day O’Connor:

Would Texas law be any different than the federal law in this case?

C. Chris Marshall:

I am not aware of any decision of the Court of Criminal Appeals that has ever announced any special state law plain view doctrine.

So as far as I know, the answer to that would be no, Your Honor.

If I could reserve.

Warren E. Burger:

Yes.

Mr. Butcher.

Allan K. Butcher:

Mr. Chief Justice, may it please the Court:

There are two aspects to the respondent’s position that we’d like to review.

The first is the one that Mr. Marshall just left off on, and that is it is respectfully suggested that this case is not ripe and should be sent back to the Texas Court of Criminal Appeals for clarification as to exactly what was the basis of their decision.

Was it in fact Article I, Section 9 of the Texas constitution, or was it in fact the Fourth Amendment to the United States Constitution?

Secondly, the respondent would state that if the Court does reach the search issue, an analysis of the case shows it to be consistent with the federal rules in the cases dealing with the plain view seizures.

Looking at the first issue, that is, the independent state grounds, respondent would say that this is not a Fourth Amendment case.

It’s interesting to note that in the opinion of the court below the only mention of the Fourth Amendment is where the court reprints the respondent’s motion to suppress.

The motion to suppress cites as a basis the Fourth Amendment to the United States and Article I, Section 9 of the constitution.

Allan K. Butcher:

Those two are juxtaposed.

They are next to one another in the respondent’s motion.

Other than that, the words “Fourth Amendment” or “United States Constitution” do not appear in the brief.

Sandra Day O’Connor:

Mr. Butcher, can you cite any Texas case that’s treated Article I, Section 9 of the Texas constitution any differently than the Fourth Amendment?

Yes, ma’am, I can.

In the case of Escamillia v. the State, a 1977 case, it involved a burglary in which a blood test was involved.

The defendant in that cause filed a motion to suppress and based it on the amendments four, five of the United States Constitution and Article I, Section 9 of the Texas constitution.

The analysis of the Texas Court of Criminal Appeals was that under this Court’s ruling, the Fifth Amendment privilege did not extend to the blood test.

Further, under Schmurber v. California, the defendant, given those circumstances, there was no Fourth Amendment requirement that a search warrant be obtained prior to getting the blood test.

The court held that although the Fourth Amendment may not require it, Article I, Section 9 did.

Is that case cited in your brief?

Allan K. Butcher:

No, sir, it’s not.

It’s found at 556 Southwest Second 796.

John Paul Stevens:

Would you repeat that, please?

Allan K. Butcher:

556 Southwest Second 796.

Sandra Day O’Connor:

Are you aware of Crowell v. State, a Texas Criminal Court of Appeals case which stated that Article I, Section 9 of the constitution of Texas and the Fourth Amendment to the federal Constitution are in all material respects the same?

Allan K. Butcher:

No, ma’am, I’m not familiar with that.

It’s interesting that at least one judge of the Texas Court of Criminal Appeals does now share that view, though.

In an opinion that was handed down in 1982, just last year, granted it’s a dissenting opinion in Synder v. the State, Judge Tiegg, Marvin Tiegg, wrote that he felt that Texas and the Texas constitution affords individuals more protection than does the Fourth Amendment.

Sandra Day O’Connor:

I guess he didn’t persuade his colleagues, though.

Allan K. Butcher:

No, he didn’t.

He goes on to say, however, that his construction… well, this is a direct quote…

“This construction is in keeping with the traditions of individuality, privacy and personal liberty which have marked the history of our state. “

So at least one justice… judge is thinking along those lines.

Also, Judge Roberts, who, of course, recently retired, has noted several times in opinions the use of Article I, Section 9, but he has never suggested that it’s a different standard or really expounded on it as Justice Tiegg or Judge Tiegg did.

William H. Rehnquist:

Mr. Butcher, would it be fair to say that the opinion of those judges… Judge McCormick, Dowley, Davis… dissenting from the en banc hearing proposition treated the opinion of the Court of Appeals, of the panel as a federal constitutional case?

They seemed to cite principally cases from this Court.

Allan K. Butcher:

I don’t think so, sir, and the reason I don’t think so is that Coolidge is cited.

Coolidge is the only federal case that’s cited in that opinion.

And then they go on to show four Texas cases that have built upon–

William H. Rehnquist:

Well, I’m not asking you about how you would interpret the Court of Appeals panel opinion.

I’m asking you how you would characterize the dissenting opinion’s treatment of the Court of Appeals panel opinion.

Allan K. Butcher:

–Well, it’s certainly not clear, just as I would suggest the entire opinion is not clear as to what is the basis.

It could have been Article… the Fourth Amendment to the United States Constitution.

It could just as easily have been Article I, Section 9, because the citing of Coolidge can be viewed as merely a jumping off point.

In other words, it’s well recognized that states can develop their own standards for searches and seizures so long as they don’t fall below the minimum standards provided by the Fourth Amendment.

Those minimum standards, it might be imagined, are set out in Coolidge, and using Coolidge as a starting place, they then build a Texas standard, and shown in the cases that are cited: Duncan, Howard, DeLoa and so forth.

It’s not clear–

William H. Rehnquist:

And it would be very easy for the Court of Appeals to make it clear.

Allan K. Butcher:

–Yes, it would.

In fact, that’s exactly what the respondent asks: send the thing… send the case back to the Court of Criminal Appeals and ask them what was the basis.

To do otherwise we think is… invites… invites basically an advisory opinion on the part of this Court.

If this Court hands down a decision and decides against the respondent, it will go back to the Texas Court of Criminal Appeals.

Byron R. White:

Well, would you… assume the Court agreed with you that it ought to go back for that purpose, but I suppose you would object to saying to reconsider also in the light of Belton.

Allan K. Butcher:

No, I wouldn’t, because this is not a Belton case.

The–

Byron R. White:

Well, I know, but assume the… that’s only because you say that the arrest they were referring to was a traffic arrest.

Allan K. Butcher:

–No, it’s not a traffic arrest, Your Honor.

The arrest was not a traffic arrest.

The stop was a traffic stop, but the arrest was the arrest on controlled substance.

If the Court–

Byron R. White:

Well, I’m just asking… referring to this passage in the Court of Appeals opinion, just saying we do not question the propriety of the arrest since appellant failed to produce a driver’s license.

Allan K. Butcher:

–Well, the–

Byron R. White:

If there was an arrest… if there was an arrest that is valid under state law, then it certainly wouldn’t violate the federal Constitution if they searched the passenger compartment of the car.

Allan K. Butcher:

–That’s true, if there was a valid arrest that preceded that.

But–

Byron R. White:

Well–

Allan K. Butcher:

–A look at the record shows that that is not the case.

Byron R. White:

–Well, I’m… I’m just… if you… if you suggest we ought to send it back to find out what the basis of their judgment was, if they decided that it was a federal ground, they would have to also… I would like to know what they meant by the arrest.

Allan K. Butcher:

Well, the record… I understand, and I have no good answer for you.

Thurgood Marshall:

All right.

Mr. Butcher, doesn’t the appendix show that they took him out of the car, took him around the back of the car,

“read him his Miranda rights and arrested him? “

Allan K. Butcher:

Yes, sir.

Thurgood Marshall:

Do you give people Miranda rights on traffic violations?

Allan K. Butcher:

Generally not.

Thurgood Marshall:

Well, then don’t you assume that he was arrested on the major charge–

Allan K. Butcher:

You don’t even–

Thurgood Marshall:

–At that stage?

Allan K. Butcher:

–Your Honor, you don’t even have to assume that.

That’s explicit in the record.

Thurgood Marshall:

That’s what I thought.

Allan K. Butcher:

On page 28, for example, Officer Maples testified… the question by Mr. Bankston:

“Then the arrest of Clifford James Brown that night was based on your suspicion the balloon contained a controlled substance, is that correct? “

“Yes, sir. “

“That’s correct. “

In fact, not only is it on page 28, but you’ll also find it explicitly stated that the arrest was based on seeing the balloon, at pages 28, 31, 25 and 27.

The arrest was for the… when he saw the balloon.

Sandra Day O’Connor:

Mr. Butcher, did the respondent challenge below the opening and inspection of the contents of the balloon?

Allan K. Butcher:

No, ma’am, they didn’t.

Sandra Day O’Connor:

Just the seizure of the balloon.

Allan K. Butcher:

That’s correct.

As far as we know… Mr. Carter and I were both trial counsel… as far as we know, the balloon was not opened until it got to the crime lab where it was analyzed by the chemist.

Sandra Day O’Connor:

And the seizure technically occurred prior to the arrest, according to the record, is that right?

Allan K. Butcher:

Well, perhaps at the same time as.

Sandra Day O’Connor:

That’s your position?

Same time as.

Allan K. Butcher:

He saw the balloon.

The balloon… when he… the balloon fell as he exited the car.

He reached in, picked up the balloon, and the arrest was made at that time.

John Paul Stevens:

How do you explain the language in the Texas court’s opinion that Justice White called your attention to and your opponent’s attention: the arrest is not questioned since appellant failed to produce a driver’s license.

As a matter of Texas law does the failure to produce a driver’s license relevant to the question of whether they could be arrested for having a balloon?

Allan K. Butcher:

Well, it’s conceivable.

Under Texas law, of course, a custodial arrest can result from a failure to produce a valid driver’s license.

As a matter of practice, of course, usually only a warning or a ticket at most is given.

I don’t think that that note in the opinion squares with the evidence in this case.

John Paul Stevens:

Well, are they saying that even though the officer should not have seized the balloon and could not rely on that to support the arrest, nevertheless, a custodial arrest was permissible because he didn’t have a driver’s license?

Is that what they’re saying?

And hence you could… you could search the car.

And then you could go ahead and do everything.

Assuming that this is… that in Texas… you’re telling us as a matter of Texas law they can make a custodial arrest for not having a driver’s license.

Allan K. Butcher:

That’s correct.

But the problem again comes back to the point that the arrest was based on the… on the sight of the balloon, and there was no… my memory is that there was no–

Byron R. White:

But they could have arrested him–

Allan K. Butcher:

–Could have but didn’t.

John Paul Stevens:

–Well, but that–

Allan K. Butcher:

And they could have given him a ticket.

John Paul Stevens:

–But if there’s a legal basis for the arrest, even if the officer acted for the wrong reason, I suppose that would not invalidate the arrest, would it?

I mean if in fact he didn’t have the driver’s license, he’s subject to arrest, I guess.

Allan K. Butcher:

That is correct.

Looking at the independent state grounds, I would reiterate that it’s just not clear as to what the basis of the court’s opinion.

There are instances where the Texas constitution and Texas law holds the government activity to a higher standard than the federal rules.

There are a number of places in the Texas constitution that provide more protection, broader protections than do federal law or Constitution.

For example, right by trial by jury under the Sixth Amendment, of course, is available to anyone charged with a criminal activity so long as it’s not of a minor matter, that is, involving six months or less incarceration.

In Texas under the constitution you’ve got an absolute right to a trial by jury in any criminal matter.

So if you’ve got an overtime parking ticket in Texas, you can have a jury trial on it.

The use of oral confessions in the Fifth Amendment is much more restricted under Article 3822 of the Texas Code of Criminal Procedure.

There are a number of instances where Texas has chosen to have broader protections, and we don’t know that this is not the case here.

William H. Rehnquist:

The last instance you mentioned… I think it was about oral confessions… you referred to a Texas statutory provision.

Allan K. Butcher:

Yes, sir.

William H. Rehnquist:

I suppose that would be apparent if the court were relying on a statutory provision.

They would at least cite the statute.

Allan K. Butcher:

Well, in our brief we have cited a statute, Article 1.06 of the Texas Code of Criminal Procedure is… is a prohibition against unreasonable searches and seizures.

We did not raise that in our motion to suppress, and it was not raised at trial.

And under Texas law, of course, any appeal, any argument has got to comport with what was done at the trial level.

I included that just to show that there was machinery there provided by the Texas legislature dealing with exactly that.

William H. Rehnquist:

Perhaps in your next case you can raise that.

Allan K. Butcher:

In my next case I’m certainly going to include that.

Byron R. White:

The heart of your case, though, is challenging the notion that viewing this tied off balloon gave probable cause to believe anything except that it was a tied off balloon; because if it did give probable cause to believe there was narcotics in the balloon, why, he could have been arrested, and then the balloon could have been searched on the spot.

Allan K. Butcher:

Well, we–

Byron R. White:

Isn’t that right?

Allan K. Butcher:

–Well, it’s true if it gave rise to probable cause.

Byron R. White:

That’s what I mean, yeah.

That’s the heart of your case.

Allan K. Butcher:

Yes.

But we would argue that even if you do apply the idea of probable cause to these facts, you still have got an impermissible search.

Byron R. White:

Why?

Allan K. Butcher:

The reason is that in the record you don’t have specific articulated rationales as to why this officer thought he had evidence of a crime before him.

He, under Coolidge–

Byron R. White:

Well, that’s just saying that he didn’t have probable cause.

Allan K. Butcher:

–He could have had probable cause.

He may have had probable cause, but he didn’t say it.

It’s not in the record.

In other words, what I’m saying is–

Byron R. White:

Well, do you say that’s a… do you say that that violates the federal… the Fourth Amendment if there was actual probable cause there but the officer didn’t know it?

Allan K. Butcher:

–I’m saying that the Court–

Byron R. White:

I don’t know.

You don’t find any cases like that around, do you?

Allan K. Butcher:

–No.

But what I am saying is that in order for the Court to hand down a decision and make an intelligent judgment on whether or not there was probable cause, there has got to be evidence as to the probable cause.

Allan K. Butcher:

There has got to be evidence that that officer knew something.

His specialized education, training, experience and so forth alerted him to the fact that an otherwise innocent object, this party balloon–

Byron R. White:

Well, he said he did.

He said he thought so based on his experience.

Allan K. Butcher:

–Well, that’s… I think a close reading of the record doesn’t really show that.

William H. Rehnquist:

Well, do you think all of our cases saying that there was probable cause are based on testimony in the trial record that an officer said yes, I saw this thing, and I immediately thought it should be seized because there was reasonable grounds to think… a lot of probable cause holdings of this and other courts are just common sense statements by judges that if an officer saw this, he’d certainly have basis to seize or search.

Allan K. Butcher:

I understand, sir.

Warren E. Burger:

And he did say here at the top of page 31 in answer to the question,

“So he was arrested on the suspicion that the green balloon that you found on him contained a controlled substance, some type of controlled substance? “

“Yes”.

Now, how much more would you think he would have to articulate his reasons?

And he… he had already testified that he had prior experience seeing narcotics carried in just this way.

Allan K. Butcher:

Well, I believe, Your Honor, that his experience is not clear; and that’s really the key issue.

If he said I know that in that locale it is common for heroin to be carried in balloons, there would be no question.

Warren E. Burger:

Well, he said it in all but the words you’ve just said it now.

Allan K. Butcher:

Well, the Court of Criminal Appeals, the Texas Court of Criminal Appeals looked at what he recited and found it insufficient.

He didn’t really articulate.

He didn’t show that he had special… the specialized knowledge, the wherewithal to know that, as I said before, an innocent party balloon was in fact evidence of crime.

Warren E. Burger:

What about the things that he observed, the officer observed in the glove department… the typical utensils of the narcotics trade?

Everything but a syringe.

Allan K. Butcher:

But they were–

Warren E. Burger:

Isn’t that so?

Allan K. Butcher:

–Yes.

That would certainly arouse suspicion.

Warren E. Burger:

Well, can’t he add these things up, add two and three and four and come to a conclusion?

And he said this was an active medium drug area.

Allan K. Butcher:

Yes, he did.

That is correct.

Warren E. Burger:

Well, what more… what more does he need?

Allan K. Butcher:

He needs to specify it.

Allan K. Butcher:

He needs to lay it out.

He has to inform the court as to what is the rational basis for his decision.

Byron R. White:

What did the trial court find?

Allan K. Butcher:

The trial court found that the object was… they upheld the–

Byron R. White:

Well, I know they upheld, but did they say there was probable cause?

Allan K. Butcher:

–Well, that’s implicit.

They just overruled our motion to suppress.

Byron R. White:

And you said there wasn’t probable cause to believe that the–

Allan K. Butcher:

There wasn’t probable cause demonstrated in that courtroom that day.

That’s what I’m saying.

Thurgood Marshall:

–Mr. Butcher, getting back to this question of not raising the point of opening the balloon, is it still true in Texas that you have to write out your exceptions during the trial?

Allan K. Butcher:

Write out exceptions to the charge?

Thurgood Marshall:

No, sir.

To the evidence.

Allan K. Butcher:

No, sir.

That’s not necessary.

Thurgood Marshall:

But you do have to make exceptions?

Allan K. Butcher:

You do have… well, you do have to have an objection.

The objection has got to be–

Thurgood Marshall:

Did you?

Allan K. Butcher:

–Yes, sir, we did.

We did object.

Thurgood Marshall:

And you just left it there?

You didn’t raise it on appeal?

Allan K. Butcher:

Excuse me.

Thurgood Marshall:

You didn’t raise it on appeal.

Allan K. Butcher:

Well, I’m sorry.

I misunderstood you.

We objected to the search.

We did not object to the opening of the balloon.

Byron R. White:

Because if there was probable cause to believe the balloon had heroin in it, the show was over.

Allan K. Butcher:

That’s correct.

Byron R. White:

Because he could have been arrested right then.

Allan K. Butcher:

That’s correct.

But–

Warren E. Burger:

He doesn’t have to know in an absolute sense that it is heroin, does he?

Allan K. Butcher:

–No, he doesn’t.

And that’s–

Warren E. Burger:

He’s not a chemist.

Allan K. Butcher:

–No, he doesn’t.

And that’s where we take exception with the state.

We agree that probable cause is a proper standard.

It’s interesting to note that the State… the Court of Criminal Appeals subsequent to Brown… in fact, in Boyd v. the State, a September 1981 case… looked at this question of what does “know” mean when they say the officer must know he’s got evidence of a crime before him.

In that case it involved the police officer observing that defendant exchanging a tinfoil bindle, a tinfoil packet for money.

To a layman the exchange of a tinfoil packet for money would be a routine matter, certainly not evidence of a crime.

That, however, was not the evidence.

In that case the officer testified he was aware that in that locale heroin normally is kept in tinfoil bindles.

Thus, the court held that the officer’s specialized knowledge gave meaning and a basis for his conclusion that he had evidence of a crime before him.

That search was upheld, the conviction was upheld, and Brown was cited with approval.

So they don’t mean absolute certainty.

They mean that he has to have knowledge that otherwise innocent items are in fact evidence of a crime.

This case is very narrow, in my view.

The holding of the court below just says that… just takes the Texas standard, which they develop there, requiring the officer to articulate why he knew he had evidence of a crime before him and extends that to opaque party balloons… otherwise innocent items.

There’s no doubt that an officer walking down the street and seeing a handgun on the seat of a parked car immediately knows he has evidence of crime before him.

But if it’s an innocent item, something that not on its face is contraband, inherently dangerous, et cetera, then the officer has got to say why.

William H. Rehnquist:

Why does an officer know in the case of a handgun that’s placed on the car… is there a law against carrying handguns in Texas?

Allan K. Butcher:

Yes, sir, there is.

It’s illegal to have a handgun in your automobile in Texas.

So as soon as he saw it, he knew it.

But if he sees a party balloon, just as if he sees a brown translucent bottle, as in one of the cases noted here, just as if he sees a photographic negative on the table.

Allan K. Butcher:

The case Nicholas v. the State cited by the court involved an officer making an arrest of an individual who is wanted in another city.

The officers walk in.

There is some negatives on the table.

They pick them up, have to hold them to the light.

Once they hold them to the light they see that it shows that defendant engaged in sexual activity with a child.

A criminal proceeding results from that.

Was the negative evidence of a crime?

Yes, it was.

Was the officer lawfully where he was?

Did he inadvertently come across it?

Yes.

But did he know that the negative was evidence of a crime?

No, he didn’t until he picked it up, held it to the light and saw it.

William H. Rehnquist:

So the Texas Court of Criminal Appeals held that that negative was not seizable?

Allan K. Butcher:

That’s correct.

William H. Rehnquist:

Although if it had been a print in the same place, it would have been seizable.

Allan K. Butcher:

That’s right.

Because it was not immediately apparent to him.

William H. Rehnquist:

I see what you mean about the Texas Court of Criminal Appeals having a different doctrine than the federal Constitution.

How do you distinguish?

You described this little process of the tinfoil package that the officer said he was accustomed to seeing as the mode of delivering drugs.

How is that essentially different from this case where he said he had had experience, prior experience with drugs, granulated substances inside of a toy balloon?

Allan K. Butcher:

Well, I–

Warren E. Burger:

Why isn’t the balloon just like the tinfoil package?

Allan K. Butcher:

–It would be if the officer had said that.

In other words, the officer doesn’t clearly state that he knows that heroin is kept in balloons or that any controlled substance is kept in balloons.

He says that he made an arrest the year before involving a balloon and heroin–

Warren E. Burger:

Well, then, what did he mean… I’ll read that question to you again.

Question:

“So he was arrested on the suspicion that the green balloon that you found contained a controlled substance, some type of controlled substance? “

Warren E. Burger:

“Yes, sir”.

How could he say it more plainly than that?

Allan K. Butcher:

–But he didn’t give any rational basis for why he believed there was a controlled substance in there.

Byron R. White:

Well, let me ask you this.

Suppose at… suppose at the suppression hearing the officer testified exactly like this, and the judge said well, I don’t think you’ve really spelled out this… why you thought that was… so the prosecutor says well, I’ll call an experienced officer and have him testify.

And the officer says a hundred thousand times he’s… he gives all the explanation anyone could possibly give which would indicate that at the time in fact there was probable cause to seize the balloon.

Now, would you say that it would violate the Fourth Amendment for that also to have seized it without being able to testify to anything?

Allan K. Butcher:

Well, I recognize I’m going counter to the… to the… to the opinions, but it would seem to me that the officer… the officer making the stop, he’s the one who has to recognize that he’s got probable cause in front of him.

After the fact or new information and so forth I don’t think ought to reach back to justify the seizure.

If the officer at the time of the incident–

Byron R. White:

Do you… do you… do you have… do you have cases to that effect?

Allan K. Butcher:

–No, sir.

Byron R. White:

You’ve got cases on the other side, don’t you?

Allan K. Butcher:

Yes.

Byron R. White:

In this Court.

Allan K. Butcher:

Yes.

John Paul Stevens:

How does the Texas court treat that problem?

Do they consider it significant as to whether the officer himself had knowledge?

I mean maybe we don’t require it, but maybe as a matter of Texas law they do.

Or you’re not arguing that?

Allan K. Butcher:

I don’t know.

I don’t know of any Texas cases on that point.

Byron R. White:

You don’t think it was enough in this case that the fellow who examined the… who did the forensic examination, he said how many drug analyses have you done?

He says thousands.

“And do you find it’s common or uncommon to discover that there’s controlled substances quite frequently housed or contained in balloons such as this? “

“Yes. “

“It’s quite common. “

Allan K. Butcher:

Yes, but that testimony was from Frank Shiller, the chemist.

Byron R. White:

I understand.

Allan K. Butcher:

It still would bother my sense of justice if–

Byron R. White:

Yes.

All right.

Allan K. Butcher:

–You will–

Byron R. White:

Okay.

Allan K. Butcher:

–That the officer doing the act did not have the probable cause, and we shouldn’t bootstrap it with somebody else’s knowledge.

Warren E. Burger:

Does it trouble your sense of justice or your sense of procedure?

Allan K. Butcher:

I think it troubles my sense of justice.

Well, it’s a close call.

It’s a close call.

John Paul Stevens:

Let me ask you another question about your Texas procedure.

The opinion ends referring to the negative case and the brown bottle case, I guess it was.

Were those… those are both Texas cases.

Allan K. Butcher:

Yes.

John Paul Stevens:

Were they decided… do you know whether they were decided on Fourth Amendment or Texas grounds?

Allan K. Butcher:

It’s not clear.

They cite Coolidge as a jumping off point, but… and that’s the thing, I think, that needs to be kept in mind.

Coolidge started… Coolidge is 1971, as I recall.

The first application of it in Texas was Nicholas, and that’s a 1973 case, and that is the photographic negative case.

Then it expands to 1977 with the Duncan case which is the bottle, the brown bottle, et cetera.

And you don’t find any other federal cases cited.

You will always find Coolidge, then Nicholas, then Duncan, then Howard, now Brown.

I think this is a narrow holding, and it really carries forward a line of cases that I just recited, and just applies the holdings of those cases… Duncan, Howard, et al., to a specialized set of circumstances; that is, green balloons in this case.

There is a red balloon case, DeLoa v. the State, a 1977 one, where again the officer making an arrest found a red balloon on the window sill.

He seized it.

It was in fact heroin.

That was ruled inadmissible, again because the officer failed to articulate a rational basis for his arriving at the conclusion that he had evidence of a crime before him.

So this is not the first balloon case.

This is the second balloon case.

You’ve got a red one in ’77 and then one now.

John Paul Stevens:

This isn’t also a case.

John Paul Stevens:

You said there weren’t any cases that were decided on the ground that the officer was unable to articulate the reasons for the arrest.

Now you’re saying that’s such a case.

Allan K. Butcher:

Oh, no.

No.

I’m sorry.

I did not communicate effectively.

There are cases… in fact, all of those… Duncan, Howard, DeLoa, and Nicholas are all examples… well, Nicholas would not, but the others are examples.

For example, seeing the–

John Paul Stevens:

Examples of what?

Allan K. Butcher:

–Examples of incidents where you had an innocent item there that did in fact contain a controlled substance, but the officer was unable to articulate a rational basis for arriving at the conclusion that he had–

John Paul Stevens:

Well, then, is it… are you arguing… I sometimes have difficulty being sure what you’re arguing… but are you arguing that there is a set of Texas cases that sets aside searches on the ground that even if there might have been in an objective sense probable cause, it was nevertheless bad because the officer could not testify to facts that prompted him to do… to make the seizure?

Allan K. Butcher:

–Yes.

Now, again–

John Paul Stevens:

Now, that may be a different rule than we apply.

Well, those three cases you say, though, didn’t say… didn’t say that objectively there might have been probable cause, but the officer just didn’t articulate it.

Allan K. Butcher:

–That’s correct.

Thank you.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Marshall?

C. Chris Marshall:

Yes, Mr. Chief Justice, if I have time to make just a couple of points.

First, I think respondent is attributing to the state court a finding it didn’t make; that is, something about articulating the basis for probable cause.

My recollection is that Simpson v. State, which is cited in Judge McCormick’s dissent below, will make clear that Texas has always looked to the objective facts, not to the officer’s subjective state of mind to look to probable cause.

I’d also say that I believe it’s true, as Justice White says, that this case could be decided in the State’s favor without mentioning the plain view doctrine, because cases such as Chadwick, Sanders, and G.M. Leasing seem to indicate that the mere seizure of an item can be based on probable cause as opposed to what might need to be shown for the search of it.

John Paul Stevens:

Well, you can arrest a person on probable cause.

C. Chris Marshall:

Certainly.

Under U.S. v. Watson, you can arrest on probable cause.

However, this could be seen as a plain view case in the sense that the officer did view these items in the car without having to make any search, any rummaging of the car; and to that extent it can be seen as a plain view case, though again as Justice Stevens suggests, that could be said of most… said to be true of most any plain view case.

The point we want to make is that we don’t believe the plain view doctrine, which is what the Texas court relied on, should be a restriction on the state’s activities, on the police officer’s authority.

We believe that probable cause is a standard, and that’s what should have been applied here.

Mr. Marshall, as a general proposition do you take the view that the Texas Article I, Section 9 protection is co-extensive with the Fourth Amendment?

He cited just one case, I think, the Schmurber problem, where it seemed to be different.

C. Chris Marshall:

I was going to say something about that.

I believe, although I don’t have the case with me because it hadn’t been cited before, that shephardizing Escamillia would show that it has now been overruled because of a recent amendment to the Texas search warrant statute in Chapter 18 of our Code of Criminal Procedure.

And I think that decision there was based not on state constitutional law, but on the specific search warrant statute we had.

And I think in general our Article I, Section 9 is co-extensive with the Fourth Amendment.

I know Article I, Section 10 has recently, a month ago, been held to be co-extensive with the Fifth Amendment.

That was in a case called Ex parte Shorthaus just published at 640 Southwest Second 924.

And I am not aware of any case where under state constitutional law we have found any special state law plain view doctrine or any state law unusual or peculiar notion of probable cause.

And again on this state law ground question, I think it is very clear that every state case the Court of Criminal Appeals cited here… Nicholas, Duncan, DeLoa… each one of those the Court will find expressly relies on Coolidge.

In fact, in Howard v. State the panel opinion in that case says, “Following the teachings” of Coolidge.

We’d ask this Court to reverse the judgment and render judgment in favor of the State of Texas.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Kush against Rutledge.