United States v. Johns

PETITIONER:United States
RESPONDENT:Johns
LOCATION:Commodity Futures Trading Commission

DOCKET NO.: 83-1625
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 469 US 478 (1985)
ARGUED: Nov 28, 1984
DECIDED: Jan 21, 1985

ADVOCATES:
Alan I. Horowitz – on behalf of petitioner
William G. Walker – on behalf of Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – November 28, 1984 in United States v. Johns

Warren E. Burger:

We’ll hear arguments next in United States against Johns.

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

Alan I. Horowitz:

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

This case is here on a writ of certiorari from the United States Court of Appeals for the Ninth Circuit.

The question presented concerns the authority of police officers to open bales of marijuana wrapped in plastic bags and found in a vehicle.

Specifically, the question is whether the lapse of time that occurred from the discovery of the packages to the time when core samples were taken from those packages, eliminated the officer’s prior authority to open the packages without a warrant on the basis of probable cause.

The facts may be briefly stated as follows: at approximately 1:30 a.m. on August 4, 1981, Customs officers received a report of suspicious activity at a drag strip outside Tucson, Arizona.

A car leaving the site was intercepted and its occupants were identified as Respondents Johns and Hearron.

Pursuant to an ongoing investigation, Customs officials already had prior information linking Johns with Respondents Leon and Duarge in an international drug smuggling operation.

Accordingly, a Customs officer then commenced surveillance at Leon’s and Duarte’s residences, which led him to follow their two pickup trucks as they headed east on Interstate Highway 10 in Arizona.

Other officers were contacted, and ground and air surveillance was maintained on the trucks which drove about 100 miles east to a remote airstrip near Bowie, Arizona.

Shortly after the trucks arrived, the first of two small planes landed.

The agents on the ground were situated too far away to see what transpired there, but they were told by their colleagues in the air that one of the trucks approached the plane.

The first plane then departed, and a second plane landed and subsequently departed.

The officers then approached the trucks to investigate.

When they got close to them, they smelled marijuana and saw approximately 40 square packages wrapped in plastic, exposed in the back of the trucks.

Five of the Respondents were arrested at the scene, and the trucks and the packages were transported back to a DEA warehouse in Tucson.

Sometime thereafter, three days later, according to the opinion of the Court of Appeals, core samples were taken from some of the bales and sent to the laboratory for analysis.

This analysis confirmed that they were in fact marijuana.

No search warrant was obtained.

The District Court suppressed the contraband, finding that it was the fruit of a warrantless search that was prohibited by the then controlling Supreme Court authority in Robbins v. California.

The government appealed, relying primarily on footnote 13 in Arkansas v. Sanders and contending that the telltale odor and the nature of the packaging of these bales made the contents sufficiently obvious that no warrant was required.

While the case was pending on appeal, this Court decided United States v. Ross, and the parties submitted supplemental memoranda to address the significance of that decision.

The government claimed that ross was dispositive.

Respondents made two arguments.

First, they claimed that Ross should not be applied retroactively, and second, they contended that Ross did not apply in this case because the probable cause focused on the packages themselves, not on the trucks.

The Court of Appeals rejected both of these arguments.

However, it found for Respondents on a ground not briefed by the parties.

The Court ruled that a warrant was required to open the packages after the three-day delay, even though one would not have been required had the search been conducted immediately at the scene or immediately at the station house.

The Court denied the government’s petition for rehearing and the government petition for certiorari.

Alan I. Horowitz:

Respondents make two arguments in this Court.

First, they renew their claim that was rejected by the Court of Appeals.

They claim that Ross does not apply here because the probable cause focused on the packages.

Rather, they contend that this case is analogous to United States v. Chadwick and therefore that the police always needed a warrant to open the packages, even if they had been searched immediately at the scene of the seizure at the airstrip.

This contention is somewhat factbound.

It was rejected by the Court of Appeals and is addressed in detail in our reply brief, and I do not plan to dwell on it at length in this Court.

Let me just say briefly that the agents’ observations here plainly gave them probable cause to search the trucks.

They were not close enough to see anything specific that happened when the airplanes landed.

What they did know was that persons involved, known to be involved in a drug smuggling operation had driven two trucks and met two airplanes at an airstrip and apparently had received something from the airplanes.

They had good reason to believe that contraband had been transferred to the trucks.

They did not see any packages.

They did not even know of the existence of any specific kind of packages until they approached the trucks.

When they did approach the trucks and saw the packages wrapped in plastic, naturally their attention focused on those packages.

But that does not alter the fact that their suspicion from the beginning was focused on the trucks themselves, not on the packages.

This case in respect is exactly like Ross and completely unlike Chadwick and Arkansas v. Sanders, cases in which the police had suspicion that was focused on particular packages or containers in those cases, and the relationship… excuse me, they had a suspicion even before the packages were ever placed in a vehicle, and the fact that they were later placed in a vehicle before the seizure was quite coincidental to the nature of the suspicion.

I would also say that applying Ross in this case leads to the only sensible result here, that it would be quite unreasonable to have required the police to get a warrant at the scene when they… in order to take core samples or to open these bales that were reeking of marijuana at the time.

If there are no questions on that point, I will turn to Respondents’ second contention, which is the focus of our petition.

That is, assuming that Ross applies here and that the police could have searched the bales at the scene without a warrant, Respondents argue that the police nonetheless needed a warrant when they opened the packages at the station a few days later.

This argument that this delay alone created a warrant requirement is completely foreclosed by prior decisions of this Court.

John Paul Stevens:

Mr. Horowitz, can I interrupt you on this, and we will get to this argument.

I am troubled by the state of the record in this case because you can’t tell when the search took place.

You cite in your brief some reference to the fact that search apparently… I guess the bales were opened a day later, and there is apparently something that suggests that.

Alan I. Horowitz:

Right.

John Paul Stevens:

In your superstition, you suggest that the issue is can they serve several days later, and then in the briefs argue about it being three days later, and we really can’t tell from the record when the search takes place.

What I would like to ask you is who do you think has the… I would think you would assume that if it took place a year later, it would be unreasonable, at some point in time maybe you can’t search.

Alan I. Horowitz:

I suppose so, but for different reasons, I think, but yes, at some point anyway.

John Paul Stevens:

But assuming there’s a period of time at which there is a duty to go ahead and open the stuff without a warrant… if you don’t want to get a warrant, who has the burden of demonstrating that the delay was either too long or was not too long?

Alan I. Horowitz:

Well, I am inclined to think that the Respondents have the burden.

I mean, there is a search here, and it seems to be valid on its face.

John Paul Stevens:

Well, if you are right in that, doesn’t that end the lawsuit, because they surely haven’t proved it.

John Paul Stevens:

I mean, shouldn’t they lose on that ground, if you… it seems to me somebody has got to decide who has the burden, and why wouldn’t that end the case.

Alan I. Horowitz:

Well, I think that it would have… when the Court of Appeals decided that it found the delay significant in this case–

John Paul Stevens:

But as you point out, nobody argued it.

So then–

Alan I. Horowitz:

–Right, nobody argued it, so it didn’t really come up.

I think what they probably should have done was sent the case back to the District Court for further findings on it.

The Court of Appeals’ view I take it was that the exact amount of the delay was not really significant, and perhaps even if it had been a day later, they still would have reached the same holding.

William H. Rehnquist:

–Is it pretty well conceded that there are bounds within which the search took place, that it was at least one day and not more than three days, or is it just totally unknown?

Alan I. Horowitz:

Well, I think it is really totally unknown.

There was nothing in the hearing that focused on it at all.

The government has… we have no, no reason to believe that it was sooner than one day, certainly.

It does not appear that it was done immediately upon return to the station.

The other thing that is peculiar about this case is that this isn’t… the search that we are talking about is not… was not really… its purpose was not an evidentiary search in the way that usually comes up in these cases.

The police were pretty sure what they had.

They were smelling marijuana.

They had 40 bales there.

They were packages like marijuana is always packaged.

So they didn’t… they weren’t all that curious about what the contents were, and I think that was–

William H. Rehnquist:

They just wanted to have it tested.

Alan I. Horowitz:

–Yes.

So what happened was in preparation for further judicial proceedings they went ahead and had it tested.

So they didn’t have the same reason to go ahead and do it.

So it is certainly possible that they might not have done it until a couple of days later, it seems to me–

Warren E. Burger:

Is it your view that if they could have opened it at the time, on the scene, right after it was seized, that they could open it one hour later, one day later, two days later, ten days later?

Alan I. Horowitz:

–That is essentially our view.

At some point you might start to run into other kinds of considerations such as their possessory interest in it.

Warren E. Burger:

In other words, you are saying that once the Court of Appeals conceded that it could have been opened right away, that was the end of the case.

It could be opened any time thereafter.

Alan I. Horowitz:

We think that the decisions of this Court compel a conclusion.

I am not sure I really answered Justice Stevens’ question about whether, the fact that we don’t really know the state of the record on this is dispositive of the case.

Alan I. Horowitz:

I mean, the government did petition for a hearing on this issue, and the Court of Appeals just did not seem concerned about exactly how long the delay was on it.

I think it is clear, it is fairly clear that they did not open the packages as soon as they could.

William H. Rehnquist:

Well, I would think part of your answer to Justice Stevens’ question would depend on whether you concede that there was an outer limit to the time in which the government was permitted to open these under the Fourth Amendment.

You have intimated that perhaps there were other considerations of some sort that might prevent the government from opening the parcel a year later.

Are those Fourth Amendment considerations?

Alan I. Horowitz:

Well, I–

John Paul Stevens:

I read your brief as conceding that because you said that this is the hypothetical warrant situation, and you surely have a duty to execute a warrant within some period of time.

You can’t just let it sit there for ten years.

Alan I. Horowitz:

–Well, the duty to execute a warrant within some time is either because it is specified on the face of the warrant, and usually it is because the information that gives probable cause may become stale at some time, which is not really the case here.

So I was really speaking generally there, Justice Rehnquist, and the particular facts here where you have, or what the agents had was forfeitable contraband that there was, that they had no right to return–

John Paul Stevens:

And they had probable cause to believe it was.

Alan I. Horowitz:

–Yes, they had probable cause to believe it was.

There was no request for return.

So I don’t think it was any possessory interest that was implicated here, and there was no way that the probable cause is going to dissipate.

I am not sure that there really was an outer limit.

I mean, I don’t–

Byron R. White:

Do you think this, do you think this opening the package to make a test, is that a search?

Is that something that–

Alan I. Horowitz:

–Well, we haven’t really litigated that here.

I guess there would be an argument under Jacobsen that it was not a search at all.

They weren’t going to find out–

Byron R. White:

–It was just a field test, wasn’t it?

Alan I. Horowitz:

–It was a field test but I think they had to remove some–

Byron R. White:

It was just a test, it was just a chemical test that would make more sure of what–

Alan I. Horowitz:

–That’s my… I mean, they had to open the packages in order to do that, so there is some sense in which there was a search of a container, a technical sense, but the actual test that they performed on it I don’t think was a search.

John Paul Stevens:

–I thought you were arguing the case on the hypothesis that there was no plain view, that you lost… that therefore, that this container, even though it was not a great secret about what was in it, really legally was the same as if it was a locked briefcase.

Alan I. Horowitz:

In this Court.

John Paul Stevens:

That’s your position, yes?

Alan I. Horowitz:

Yes.

Well, we have not–

John Paul Stevens:

I am not suggesting that makes you wrong, but I mean, I think we have either got to decide it as a container case or as a bale of marijuana case.

Alan I. Horowitz:

–No, but as far as the question of whether there was an outer limit on how long it could have taken to search, I think that is something that does depend on the nature of what they had.

If there was a locked briefcase, I think it would be unreasonable not to search it for a month, just hold it for a month without turning it over.

But in this case I am not sure it would be.

But given the way the Court of Appeals decided the case, I mean, we had this decision on the books.

John Paul Stevens:

But then, if it were a locked briefcase, who would have to prove it was or was not searched within the month?

That’s the question that interests me, and I don’t see anybody addressing it.

Alan I. Horowitz:

Well, I don’t think that the length of time is really very important.

John Paul Stevens:

Well, but you just conceded it would be critical in the locked briefcase situation, if I understood you.

You said that if they waited thirty days, the search would be unreasonable.

Alan I. Horowitz:

Well, that’s our view, but I think the Respondents’ view and the Court of Appeals’ view is that as soon as you get past the time when they could have gotten a warrant, the length of time doesn’t matter, and a much shorter time is good enough to grant a suppression motion in this case.

That is the legal principle we have a problem with, and that is why we are petitioning here.

So from the perspective of the decision below, I don’t think it matters at that point.

In our view, the contention that the delay here by itself created a warrant requirement is foreclosed by the prior decisions of this court.

The Respondents did not dispute here at all that the police could have searched the trucks themselves even three days later.

That principle is established by a long line of positions here, beginning with Chambers v. Maroney, continuing through Texas v. White and Michigan v. Thomas, and in fact, last term, in Florida v. Meyers, all nine Justices of this Court characterized that proposition as well settled.

What Respondents do argue here is that at some point during the time that the packages were at the stationhouse, a point that they define somewhat imprecisely as the time limit became practicable to get a warrant, the packages themselves became analytically distinct from the trucks on which they were found, and they could at that point no longer be searched without a warrant.

This argument is completely contrary to Ross on two separate points.

First, the basis for the decision in Ross is that the authority to conduct an automobile search extends to the entire automobile, including its contents, which includes the packages found inside.

That is to say, the search of a package found in an automobile is part of the automobile search itself.

It is not distinct at all.

Just as the justification for the automobile search, that is to say, probable cause, continues to authorize a warrantless search of the vehicle after it has been impounded at the station, so does that justification authorize the search of a package at that time as part of that vehicle search.

Second, Ross clearly confirms that the validity of a warrantless automobile search does not depend on any special exigency.

Indeed, if it did, the packages and the trucks in this case probably could not have been searched without a warrant even at the scene since the Respondents had been arrested and the trucks had been secured.

Certainly if Respondents were correct on this point, the trucks and the packages could not have been searched once they had been taken to DEA headquarters, even if that search had been conducted quite promptly there.

These Courts’ case from Chambers through Florida v. Meyers, however, make it clear that the trucks in fact could have been searched at the stationhouse, even after some time had elapsed.

Thus, Respondents’ contention–

Byron R. White:

Well, what if they… what if they just drove the trucks to the stationhouse and let them sit?

They have probable cause to believe that the packages in them are marijuana and they just let the trucks sit for a month, and then they finally get around to having to prepare for trial, so they want better proof, so they seize the… they open the packages and test them?

Alan I. Horowitz:

–Well, I still think there is no Fourth Amendment violation there unless something is shown as to what problem there was in waiting a for a month, either that the probable cause should have dissipated or that the question that came up in the Segura case here, whether there was some interference with some right of the Defendant, possessory interest.

Alan I. Horowitz:

I mean, here they didn’t ask for these things back.

They didn’t have any right to get them back.

They were contraband.

Byron R. White:

Well, I suppose the trucks were forfeitable, I suppose.

Alan I. Horowitz:

The trucks were forfeitable, too, sure.

I think that is clear from the Court’s decisions.

The Court has said that even though the exigency has been removed at the stationhouse, the search is still allowed to be performed without a warrant, and at that point I don’t think it matters whether it is eight hours or a day or even a month, at least as far as those principles go.

But the contention that the exigency here, the question of exigency, when it became practical to get a warrant, is sharply at odds with Ross.

This case, as recognized in Ross and discussed in other automobile search cases in this Court, involves a recognized exception to the warrant requirement, an exception that is distinct from the exigent circumstances doctrine.

When probable cause exists to search an automobile and its contents seized on the highway, the practicability of obtaining a warrant at some time after the seizure is not a relevant consideration.

Now, putting aside for the moment the dispositive precedent on this point, there is still no reason, no common sense reason why the delay should have any effect on the ability to conduct a warrantless search.

As the Court explained in Ross, the scope of an automobile search is precisely the same as the scope of a search that could be authorized by a magistrate through a search warrant.

Reading from page 823 of Ross, the Court said the scope of a warrantless search based on probable cause is no narrower and no broader than the scope of a search authorized by a warrant supported by probable cause.

Only the prior approval of the magistrate is waived.

The search otherwise is as the magistrate could authorize.

Byron R. White:

What were you reading from there, Mr. Horowitz?

Alan I. Horowitz:

This is Ross at page 823.

If the officers had obtained a search warrant for the trucks at the time that they seized them, there surely is no contention that the trucks and the packages could not have been searched later at the stationhouse, even three days later.

There is no reason why there should be a different result here.

Certainly policy considerations lend no support to the Court of Appeals’ holding.

The decision below does not advance any privacy interest of the individual at all.

The privacy intrusion to him is the same whether the packages are searched immediately or whether they are searched three days later.

There is no expectation of privacy of the individual that is intruded by the warrantless search here.

It cannot seriously be contended that the delay itself created an expectation of privacy in the package that did not exist previously and that could not be invaded without obtaining a search warrant from a magistrate.

Under Ross, the placement of a package in an automobile sufficiently reduces his expectation of privacy that it may be searched on the basis of probable cause without a warrant.

That expectation of privacy cannot magically reappear with the passage of some indefinite period of time while the package at all times remains in the custody of the police.

The practical effect of the rule imposed by the Court of Appeals is simply to induce the police to make an immediate search.

That does not help the individual’s privacy interest at all, but it does put an unnecessary strain on law enforcement resources with some potential cost to their other responsibilities.

Finally, the Court of Appeals’ rule completely eviscerates this Court’s effort in Ross to establish a bright line to guide officers in conducting automobile searches.

Each case, under the Court of Appeals holding, where the search was not made at the scene, would result in litigation over when it became practicable to get a warrant, or alternatively, whether the delay was justified by “pressing law enforcement duties”, a phrase like that used by Respondents.

Thurgood Marshall:

I can see another line, the line being when you take it to the stationhouse, shouldn’t you get it then?

Shouldn’t you search it when you get it to the stationhouse?

Alan I. Horowitz:

Well, even the Respondents haven’ t contended that.

They say that there could be a delay of a few hours.

Thurgood Marshall:

Well, I’m not a Respondent.

I’m asking the question.

Alan I. Horowitz:

There could be a line drawn there.

That’s the line that the Court refused to draw in Chambers v. Maroney and the line of cases thereafter.

There really isn’t any reason why the packages should be treated differently than the car.

The Court could have held in Chambers that the search had to be conducted at the scene, and once the car is taken to the stationhouse a warrant was required.

It decided for good reasons there that there was no point in having such a rule.

Thurgood Marshall:

Hasn’t this Court said that once you take the vehicle, you can inventory it?

Alan I. Horowitz:

Yes, it would inventory search it.

Thurgood Marshall:

If you inventoried it at the station, you would have found this marijuana, wouldn’t you?

Alan I. Horowitz:

If they had opened the packages?

Thurgood Marshall:

Hmm?

Alan I. Horowitz:

If they had opened the packages.

Thurgood Marshall:

Yes, and they could have done that in less than three days.

That’s all I’m saying.

Alan I. Horowitz:

Yes, they could have done that in less than three days.

John Paul Stevens:

May I ask, you have argued mainly there is no change in the privacy interest, but focusing on the possessory interest of the owner of the container for the moment, would there be… would the case be any different, in your view if… it is unlikely on these facts with this container… but if the owner had said I want the package back just as soon as possible because it has got very important matter that I want to use?

Could they still have continued to sit on it indefinitely?

Alan I. Horowitz:

No, I don’t think they could have?

If he had asserted there was an important matter in there that he was entitled to, not that he needed the marijuana to distribute it, but something that was not forfeitable–

John Paul Stevens:

Assume it was a locked briefcase.

Alan I. Horowitz:

–Yes, absolutely.

At some… at that point the police would have an obligation to conduct the search in some expeditious manner.

I still think they could delay it for a few hours if they had other duties that they were forced to attend to, but at least there there is a reason, and there is some deprivation.

Now, I am not sure what the remedy would be.

William H. Rehnquist:

So suppose that the search was… seized… a bunch of bales of cotton were seized and couple weeks goes by, and the seizure of the bales was perfectly legitimate, and the owner says, well, look, I want to sell these bales, this is a good time of year to sell them.

William H. Rehnquist:

The government just can’t hang on indefinitely in the face of a request like that unless they have got some reason to keep them, can they?

Alan I. Horowitz:

Right.

I completely agree.

They are under an obligation there to find out whether there is in fact marijuana in there or whether it is just cotton.

Sandra Day O’Connor:

But in this case I gather you agree that the officers had probable cause to believe it was marijuana, and in fact it was and was forfeitable.

So under those circumstances you say there is no time limit in any event.

Alan I. Horowitz:

I can’t conceive of anything in the facts of this case where the Defendants would be prejudiced at all by… I mean, as a practical matter, the police are not going to keep these things around indefinitely.

They have an interest in getting things moving.

But I don’t see what reason they would have to complain about it, even if the search had taken longer.

It could have been longer.

It seems to me that there is simply no reason to inject uncertainty into what is at least at this point a fairly well settled area of the law.

There is no problem here that requires correction.

There is no interest here that requires a special rule to protect Fourth Amendment rights.

The police have no incentive unnecessarily to delay opening the packages that are found in an automobile when they want to search them on the basis of probable cause.

Even acting without any fear at all at the invocation of the exclusionary rule, the police’s desire to advance the course of its investigation suggests that officers will search such packages as soon as practicable.

Therefore, there is no need to create a rule to prevent officers from delaying.

Secondly, to the extent there is any delay… and that is really illustrated in this case… it a does not really prejudice the owners of the packages in the absence of some other set of facts like the locked briefcase that we have been discussing.

I think it is important to emphasize here that even though the question in this case is whether the police needed to get a warrant or not, this is not really like the normal warrant case where there is a concern of protecting the individual’s privacy.

Normally in a case where the court imposes a warrant requirement, the reason is to interpose the magistrate in between so that the police’s own determination of probable cause is not a justification for search.

Therefore, in a case where the police turn out to be wrong, there is a real privacy intrusion in that something is searched for no reason.

But that is not the case here because even if the Court of Appeals is affirmed, the police are still entitled to conduct a warrantless search here.

It does not protect against the danger that the police are going to misapprehend the nature of probable cause.

The only thing that is gained by applying the Court of Appeals’ rationale is that the police will be prevented from delaying, and as I said before, that delay does not hurt the Defendants, and there is no incentive for the police to do it anyway.

I would like to reserve the remainder of my time.

Warren E. Burger:

Mr. Walker?

William G. Walker:

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

I think that there is a fundamental disagreement between counsel on the various sides as to what the issue in this case is.

The government argues that the issue in this case is whether the government had probable cause to search the automobile at the scene.

We disagree with that.

We think that the issue was whether or not the government was involved in an automobile search at the scene or at any time.

Warren E. Burger:

Do you agree with the Court of Appeals that the packages could have been opened on the scene right at the time they were–

William G. Walker:

No, sir, we do not.

Our position before the Court of Appeals and before this Court is that the record is devoid of any indication that there was ever an automobile search in this case.

The focus of the police officers was solely and exclusively on the packages from the moment that they arrived on the scene until the time that the core samples were taken later.

There is not a scintilla of evidence before this Court that the police officers were ever concerned with the types of vehicles as vehicles.

William H. Rehnquist:

–Well, that ordinarily is a factual question, I suppose, you know, if the focus of the officers is a relevant fact.

The Court of Appeals resolved the facts against you, or at least it resolved the legal issue against you.

Do you take issue with the Court of Appeals’ statement of the facts or with their resolution of the legal issue?

William G. Walker:

I take issue with your conclusion, respectfully, that the Court of Appeals found that fact against us.

If you go back to the District Court opinion, the District Court opinion found as a matter of fact that the police officers from some thirty feet saw a group of packages, that as they approached the packages, they knew that those were the types of packages that commonly were used to put marijuana in, they smelled marijuana coming from the packages.

They had been… there had been other officers on the scene about an hour earlier who had looked in those vehicles, had smelled no marijuana, had seen no packages.

The officers concluded, and the testimony is unequivocal on this point, that the officers believed that the marijuana was only in the packages.

In fact, the government at the District Court level argued that there was no search because they knew that the marijuana was in the packages.

The District Court found as a matter of fact that when they got to the vehicles, they “viewed the packages” that were–

William H. Rehnquist:

The packages were in the vehicle.

William G. Walker:

–Yes, sir, but the District Court found only that they viewed the packages, not that they did any search.

When it then went up to the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Ninth Circuit found that they bad probable cause to conduct an automobile search, not that they ever conducted an automobile search.

So they never found that fact against us.

Warren E. Burger:

Let me see what, if I am confused about the facts.

How did these packages get into the truck from the, from wherever they came?

William G. Walker:

According to the evidence, what happened was the vehicles went down to an airstrip in Bowie, Arizona.

They were spotted and surveilled by police officers all the way from Tucson.

When they got–

Warren E. Burger:

Then you don’t agree with the government’s version of the facts, that they came in this isolated airstrip at night and the packages were taken off the small airplane and put onto the truck.

Do you agree with that?

William G. Walker:

–We agree with part of that.

It was during the daylight hours, and what happened was the police were given a tip by a confidential informant in Tucson, which is approximately 100 miles from this site, and in fact, they had continuous surveillance if these two vehicles from the time that they left Tucson, Arizona earlier that morning until they got to the landing site and met with the airplanes.

So it was not–

Warren E. Burger:

And you agree that the packages came off the airplane, do you?

William G. Walker:

–Yes, Your Honor, we do.

Warren E. Burger:

And were put on–

William G. Walker:

Yes, Your Honor, we do.

Our point is–

William H. Rehnquist:

–You say that the police never made a vehicle search.

William G. Walker:

–Yes, sir.

William H. Rehnquist:

Well, you mean of… I guess they never searched the parcels until several days after they were removed–

William G. Walker:

That is correct, Your Honor.

William H. Rehnquist:

–from the vehicle.

Where were the parcels seized?

William G. Walker:

That’s a very important question to our theory of the case.

The vehicles were camper trucks, and what happened was–

William H. Rehnquist:

Well, does it take a long time to answer the question?

William G. Walker:

–No, sir.

William H. Rehnquist:

Where were the parcels seized?

Were they on the vehicles?

William G. Walker:

The parcels were in the pickup portion of the vehicles.

William H. Rehnquist:

So they were seized on the vehicles–

William G. Walker:

Yes, sir, they were.

And–

Sandra Day O’Connor:

–Okay.

Were the vehicles themselves taken into custody, seized?

William G. Walker:

–Yes, ma’am, the vehicles were driven to the stationhouse and–

Sandra Day O’Connor:

By the officers.

William G. Walker:

–Yes.

Sandra Day O’Connor:

The entire vehicle with the contents.

William G. Walker:

Yes, Your Honor, yes, Your Honor.

Our point is that what Ross says… and I think we need to look at the language of this Court in Ross… that if you are in the midst of an automobile search and you need to search packages to complete the automobile search, then it is justifiable to search the packages without a warrant.

Here is clearly what Justice Stevens said in the opinion in Ross.

then a legitimate search is under way… and we are talking about an automobile search… nice distinctions between glove compartments, upholstered seats, trunks and wrapped packages must give way to the interest in the prompt and efficient completion of the task at hand, and the whole grounding of Ross, of this Court’s opinion in Ross, is that if you are in the midst of an automobile search, it would defeat law enforcement purposes to say, well, you can search certain portions of the automobile but not all of it.

The situation is radically different, as it was in Chadwick and Sanders, if the focus is on not the vehicle as a whole but rather, on a particular item which happens to be reposed in an automobile.

Warren E. Burger:

Well, you must agree, I would think, that frequently we do not consider a principle laid down as confined to the precise facts in which… in the case in which they were laid down.

The Ross opinion announced a general principle, did it not, that deviated somewhat from prior holdings?

William G. Walker:

Yes, Your Honor.

Warren E. Burger:

It went beyond prior holdings.

William G. Walker:

Yes, Your Honor.

Warren E. Burger:

But if it happened to be a truck instead of a camper or a taxicab instead of a truck, that wouldn’t make any difference, would it, in terms of the principles laid down?

William G. Walker:

No, sir.

I think the type of vehicle is important here only for one reason, and that is that the packages of marijuana were in a separate portion from the passenger compartment of the vehicle.

If in fact the police officers had really been concerned with the vehicles in question, certainly they would have searched the whole vehicles.

They didn’t do that.

In fact, there is not a scintilla of evidence in the record that they even went into the passenger compartments where the people were located to search that at all.

The facts of this case are that the police officers, according to the District Court, from 30 feet away saw the packages, smelled the marijuana, knew in their own minds exactly where it was, got up to the vehicles, said take the vehicles to the stationhouse.

They took the vehicles to the stationhouse, unloaded the packages–

Thurgood Marshall:

Could they have opened up one of those packages at that point?

William G. Walker:

–No, Your Honor.

Thurgood Marshall:

Why not?

William G. Walker:

They could not have opened the packages because what the police were concerned about in this case and what they were involved in was not an automobile search, but rather, a search of packages, and in Chadwick where the–

Thurgood Marshall:

Well, it was the packages that they took, right?

William G. Walker:

–Yes, Your Honor.

Thurgood Marshall:

Well, couldn’t they have opened what they took?

William G. Walker:

I don’t believe so, Your Honor, not without a warrant.

The general rule is–

Thurgood Marshall:

What’s the rule at the point of arrest?

William G. Walker:

–I’m sorry?

Thurgood Marshall:

At the point of arrest they had what, hold them there, then go get a warrant?

William G. Walker:

Yes, sir.

John Paul Stevens:

I see.

William G. Walker:

If the packages had been–

John Paul Stevens:

May I ask–

–They are just reeking of marijuana.

John Paul Stevens:

They could… just reeking, you can smell them that well?

William G. Walker:

–Yes, sir.

Thurgood Marshall:

You would still have to go get a warrant.

William G. Walker:

Yes, sir.

According to this Court’s dictates, that goes to the probable cause but not to vitiate the warrant requirement.

Sandra Day O’Connor:

Mr. Walker, do you think the police could have… if your client had requested the return of the bales, that the police would have to give back the marijuana in this case to them, ever?

William G. Walker:

No, ma’am, but I think what would have happened, as a matter of–

Sandra Day O’Connor:

It was forfeitable, was it not?

William G. Walker:

–Yes, ma’am.

Sandra Day O’Connor:

It was contraband.

William G. Walker:

Yes, ma’am.

Sandra Day O’Connor:

And what possible interest did your clients have in the contents of those bales that–

William G. Walker:

It’s–

Sandra Day O’Connor:

–that you think can be asserted?

William G. Walker:

–It’s not because of a possessory interest in counterfeit goods that we allow the exclusionary rule in this setting.

Any time there is contraband you would have that argument, that since the person had no interest in it, therefore he can’t assert his Fourth Amendment privilege.

The Court has–

Sandra Day O’Connor:

What’s wrong with that argument?

William G. Walker:

–Well, I think that the thing that is wrong with that government is that the reason for the exclusionary rule is as a prophylactic effect, to prevent the police from engaging in illegal behavior, and the fact that it might not help in this cast doesn’t mean that the exclusionary rule wouldn’t help in cases where we don’t know what is in the packages.

Warren E. Burger:

But this Court, the Court of Appeals said it would have been perfectly legal and proper to have torn the packages open at the scene on the bed of the truck or whatever you want to describe it, and take it out for testing.

William G. Walker:

Yes, sir, yes, sir.

Warren E. Burger:

Then there wouldn’t have been any case, would there?

William G. Walker:

No, sir.

That’s what the Court of Appeals said.

Warren E. Burger:

What’s the… I will put to you the question that your friend rhetorically put, how you have been damaged by waiting a day or two.

William G. Walker:

Well, it is not the lapse of time that damages us, it is the fact that since this investigation was always an investigation of packages, people have a high expectation of privacy in packages, and this Court has frequently said, way back to the Jackson case where in the mail people had an expectation of privacy in packages, that people’s expectation of packages is high.

Warren E. Burger:

Well, privacy expectations in the mail or in interstate commerce are quite different from being… from packages unloaded from a small airplane at an isolated airstrip under the circumstances shown here.

William G. Walker:

Well, I disagree with Your Honor to the extent that I think this Court has consistently found that regardless of the nature or type of package or the situation with packages, people have a high expectation of privacy with respect to packages.

Warren E. Burger:

What if it were in the back of the trunk of a car under Ross?

William G. Walker:

If the police are in the pursuit of an automobile search, then dispute a person’s high expectation of privacy in the package, this Court has allowed the search, not because the expectation of privacy is lessened, but because of the fact that the police are engaged in an automobile search, the completion of which is dependent on being able to search everything in the automobile.

Warren E. Burger:

You say it must be completed right away on the scene.

William G. Walker:

Yes, Your Honor.

What this Court said in Ross was if you are in the middle of an automobile search and all of a sudden you come across a package, you can’t search the package, it frustrates the auto search.

But there is no auto search in this case.

Warren E. Burger:

But then, do you really disagree with the Court of Appeals about the search on the scene?

William G. Walker:

We would support them as a backup position, but we disagree when they conclude that these packages could have been searched on the scene.

Sandra Day O’Connor:

Well, Mr. Walker, what… what about a package that is wrapped as marijuana bales are typically wrapped, experienced officers known that, it looks like marijuana, it smells like marijuana, and n fact, it is marijuana?

Now, what privacy interest do you have in it?

It isn’t like an ordinary package that someone might expect to have a privacy interest in.

I think your argument just fails to reckon with the facts of this case.

William G. Walker:

Well, I would respectfully disagree with Your Honor.

I think that, first of all, this Court has long ago abolished the distinction between worthy and unworthy containers and has found that the nature of a container–

Sandra Day O’Connor:

Has nothing to do with whether the container is worthy.

If the container discloses in this case, by virtue of the smell and the appearance, its contents.

William G. Walker:

–Well, that is really the plain view argument, and that is an argument which is not being urged upon this Court by the Petitioner.

It was abandoned after the Court of Appeals argument, and in fact–

Byron R. White:

Could I ask you, what would the government have to do before it burnt these packages?

William G. Walker:

–I’m sorry, Your Honor.

Byron R. White:

What would the government have to do before it confiscated these packages and burnt them?

William G. Walker:

Burnt them?

Byron R. White:

Burnt the marijuana, yes.

Let’s just assume there was never a criminal prosecution filed against these people, they just wanted to get rid of the marijuana, they have probable cause to believe that’s what it is, so they open it to make sure and burn it.

William G. Walker:

If they open it to make sure, that’s a search, and I think they would have to have a warrant for that.

Byron R. White:

Before they can burn it.

William G. Walker:

Before they opened it to see what was in it.

Byron R. White:

Well, you don’t think they could just have burned it without opening it?

William G. Walker:

I don’t know the answer to that question.

Warren E. Burger:

How about a forfeiture proceeding?

Do you think it would be required before they did the burning?

William G. Walker:

I think it would be required before there was any physical intrusion into the package.

Thurgood Marshall:

Do you still claim privacy?

William G. Walker:

Yes, Your Honor.

What I am–

Thurgood Marshall:

Why didn’t they claim it?

William G. Walker:

–Why didn’t they claim it?

Thurgood Marshall:

Why didn’t they claim those bales?

William G. Walker:

Well, for the same reason that people that are involved in criminal activity never claim contraband, but that doesn’t–

Thurgood Marshall:

But you still have privacy in something you don’t want to admit is yours?

William G. Walker:

–I think it is… I think this Court has recognized–

Thurgood Marshall:

Well, then, you keep putting quotes on things.

Would you put quotes on that privacy?

William G. Walker:

–What I am suggesting to this Court is that you have for years and years recognized that people have a high expectation of privacy in containers, even though they may contain contraband.

I don’t think that is a novel concept.

Lewis F. Powell, Jr.:

Mr. Walker, what position did the Defendant in this case take at the trial court?

William G. Walker:

At the trial court the position of the defendants were twofold, Your Honor, number one, that this was not a vehicle search and that there was a warrant needed for the packages for that reason, and number two, at the time that we were in the trial court, we were arguing Robbins, which was far different.

Lewis F. Powell, Jr.:

You were relying on Robbins.

William G. Walker:

Yes, Your Honor, we were.

Lewis F. Powell, Jr.:

That was a vehicle search case, wasn’t it?

William G. Walker:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Was that your position also in the Court of Appeals?

William G. Walker:

It was our position initially in the Court of Appeals, and then Ross came down while we were on appeal.

So we then asked to submit additional briefs on the Ross issue and were permitted to do so.

Lewis F. Powell, Jr.:

Yes.

What charge in the facts occurred between the time you relied on the automobile search case and the time you now rely on an entirely different theory?

William G. Walker:

What change in the facts in this case?

Lewis F. Powell, Jr.:

Yes.

William G. Walker:

Nothing, Your Honor.

It has been our position since the beginning that a warrant was needed for this–

Lewis F. Powell, Jr.:

That there was no automobile search?

William G. Walker:

–I’m sorry?

Lewis F. Powell, Jr.:

Was it your position from the beginning that there was no automobile search?

William G. Walker:

We didn’t argue–

Lewis F. Powell, Jr.:

You relied on Robbins–

William G. Walker:

–Yes.

Lewis F. Powell, Jr.:

–And to rely on Robbins, you had to state, I assume, or argue that there was an automobile search.

William G. Walker:

Our argument initially was that there was no automobile search, but if there was one, then Robbins applied.

We didn’t focus in on that issue to the extent that we have here before this court, obviously because at the time we thought Robbins was controlling.

But we did not take an unequivocal position that this was an automobile search in Robbins.

John Paul Stevens:

I want to go back, if I may, to the question of whether there was an automobile search, which is you in effect making an alternate ground for affirmance by disagreeing with the Court of Appeals on that point.

William G. Walker:

Yes, Your Honor.

John Paul Stevens:

And you say that it was not an automobile search in part because there was no evidence found anywhere except in these bales, and you have inferred from that that therefore the officers did not in fact search the rest of the camper.

But how do we know that?

The record doesn’t show whether they looked at the rest of the camper or not?

William G. Walker:

Well, on page 139 of the trial record, on question by the prosecutor, the officer who was at the scene indicated that they did not do a search.

John Paul Stevens:

But even if they didn’t, take it one step farther, the question as to whether Ross applies or not I suppose turns on whether there was probable cause to make a search of the vehicle, and could not one conclude that when you have loaded all this stuff into this vehicle and the vehicle is owned by the same group of people who own the contents, that there is probable cause that would justify a search of the entire vehicle?

William G. Walker:

I don’t think there would be any more probable cause in this case than there was for the Court in Sanders?

John Paul Stevens:

Except there they had put it in a taxicab.

There is no reason to believe the taxicab operator is–

William G. Walker:

Well, the facts, as I remember them, in Sanders, Your Honor, were that there were two trips by the Defendant to the vehicle in Sanders.

The first trip what he did was he took a bunch of personal luggage and put it in the automobile.

He then went back and got the green briefcase and put it in the glove compartment.

So you could make the same argument in Sanders that the police officers had the right to search the passenger compartment because there was other luggage of the defendant there, and–

John Paul Stevens:

–My memory may be faulty.

Wasn’t that a taxicab?

William G. Walker:

–It was a taxicab, but–

John Paul Stevens:

Well, is there any reason to believe the cab company is in league with the people that were–

William G. Walker:

–No, sir, but there was personal luggage of the defendant that was put in the taxicab.

John Paul Stevens:

–Well, yes, but… all right.

William G. Walker:

My point is simply that it is not whether you have probable cause to make an automobile search that should be dispositive, it is whether you are engaged in one.

John Paul Stevens:

In other words, the subjective motive of the police officer making it rather than the objective facts that justify the action?

William G. Walker:

No, sir.

It is the reason for the search, just as in a search incident to an arrest case.

This Court has held that if you search an automobile incident to somebody’s arrest, since the reason for that search is to allow the protection of the police officer, we say it is okay, but if you then search that same automobile, not because it is for the protection of the police officer incident to arrest, but later at the stationhouse, even though you could have done a search incident to arrest, we don’t allow it.

John Paul Stevens:

Yes, but that is… we are talking about Ross now, and the question is whether there is probable cause to make a vehicle search.

William G. Walker:

Yes, sir.

John Paul Stevens:

And your position is there was not probable cause to make a search of this camper.

William G. Walker:

No, sir.

My position is that regardless of whether there was probable cause to conduct an automobile search, there was no automobile search in progress, and if I might quote, Your Honor, from your own language in Ross–

John Paul Stevens:

My understanding… they can finish the job they have already started.

William G. Walker:

–Yes, sir.

You say in the course of a legitimate warrantless search of an automobile, police are entitled to open containers.

There is no automobile search going on here.

Our position on that issue is very simple.

The focus of this investigation, just as the focus of the police investigation in Chadwick and in Sanders, was reposed entirely on these containers.

In fact, the government’s argument before the District Court and the Court of Appeals was that their interest was so focused on the containers that there was no search because the marijuana was in plain view.

William H. Rehnquist:

Well, then, your point, I take it, is that even though these things were loaded on these trucks at the time the police saw them, the police would have had to get a warrant to search them right at that moment.

William G. Walker:

Yes, Your Honor, that is our position.

Our position is that the issue here is not a lapse of time; the issue here is whether there was an automobile search going on where they knew there was contraband but didn’t know where it was, as in Ross, where they had heard that there was contraband and had to search the whole vehicle to find it–

William H. Rehnquist:

Well, then, your… the success of your position would depend on later showing, I suppose, under your terms that the police wanted only to seize these particular bales, and that they would not have searched any other part of the truck.

William G. Walker:

–And in fact, all of the evidence is undisputed that that is exactly what happened.

William H. Rehnquist:

But you have to know at the… you have to know that something later is going to happen at the time you decide whether to get a warrant or not.

I suppose it is the subjective motivation of the police: are you going to search the whole truck or are you just going to seize the bale?

William G. Walker:

It is what the police are in the process of doing, if they are in the process of conducting an automobile search.

William H. Rehnquist:

That really would work quite a twist in Ross, I think, because you are imputing, imputing kind of a motivation thing that certainly isn’t in Ross.

William G. Walker:

Well, this Court has found consistently that when you are applying an exception to the warrant requirement, the exception should be narrowly construed.

William H. Rehnquist:

Well, I don’t think you will find that a majority of the Court agree that Ross should be narrowly construed at all.

Ross defines an exception to the warrant requirements to be applied according to its terms, not narrowly.

William G. Walker:

Regardless of how you read Ross, though, Your Honor, Ross applies to situations where there is a legitimate automobile search in progress.

I think that it would distort the meaning of Ross even in a liberal sense to say that any package that happens to be reposed in an automobile can be searched even if the police aren’t engaged in an automobile search.

Thurgood Marshall:

In this case, would it have been all right if the officer had said,

Thurgood Marshall:

“We are going to conduct a search of this vehicle? “

William G. Walker:

If he had said that and then they had been engaged in an automobile search, yes, Your Honor.

Thurgood Marshall:

So the only thing wrong was they didn’t make those–

William G. Walker:

Well, the only thing wrong with it was that the entire focus of this inquiry was on the packages.

Thurgood Marshall:

–Oh.

Well, what are you searching the vehicle for other than the packages?

William G. Walker:

There was no search of the vehicle.

There was never any search of the vehicles in this case.

Byron R. White:

Suppose there had been one package, and it was a big truck, and you didn’t know whether it was in the back or in the front, and so you had to search the vehicle to find the package?

Under your provision there was a search of the vehicle in progress–

William G. Walker:

But if the focus–

Byron R. White:

–And then you find the package.

Could you open it?

No.

William G. Walker:

–That’s not… that’s not the facts of this case.

Byron R. White:

Well, I know, but what if you did?

William G. Walker:

I think if you were in the process of making a vehicle search–

Byron R. White:

Only to… only to find the package.

William G. Walker:

–Then I think you are doing a vehicle search, but you are not doing a vehicle search here.

I think most of these arguments could have been made against the petitioner in Chadwick or in Sanders, and in Chadwick and Sanders, even though these items were in vehicles, the Court said these are not vehicle search.

These are package searches.

John Paul Stevens:

No, but there is still another distinction.

It is not just that they are in a vehicle or you are making a vehicle search.

There is a question of whether you have a right to make a vehicle search.

There was no right to make a vehicle search in Sanders because the vehicle itself didn’t… there was no probable cause to believe anything would be found in the vehicle other than the package.

And your argument is it is not the right to make the search that is dispositive; it is whether the officers in fact engaged in the search, and there is language that tends to suggest that.

William G. Walker:

Well, I respectfully disagree with you, Justice Stevens, for this reason.

In Sanders the facts clearly established that there was other luggage of the Defendant’s that was in that vehicle.

Now, that luggage could have been searched to find evidence of the crime, and yet it wasn’t whether there was probable cause to search further that was important to this Court, it was whether or not in fact the focus of the inquiry was on the other things or whether it was exclusively on the green suitcase.

He came out with a whole bunch of luggage.

John Paul Stevens:

Well, would you not agree that at least analytically there is a possibility of a distinction between a right to make a vehicle search on the one hand, and the question of whether you are actually engaged in it on the other?

William G. Walker:

Absolutely, Your Honor, and I think that is what the government grounds its argument on.

John Paul Stevens:

And that’s what the Court of Appeals based its holding on, too.

William G. Walker:

Yes, sir.

John Paul Stevens:

That there was probable cause to search the entire vehicle.

William G. Walker:

Yes, sir.

That I think is wrong, because the whole reason to relax the rule for a package search when a package is in a vehicle is to allow police to complete their task of searching the vehicle.

If they are not involved in a vehicle search, why then should the rule be relaxed to allow a package search without a warrant?

The facts in this case indicate that the police officers arrived there some five to ten minutes after the packages had been loaded onto the trucks, that in fact, what happened was the packages were taken out of the airplanes and were then loaded into the vehicles.

Let’s suppose that the police officers in this case had arrived five to ten minutes earlier, and when they got there the packages which happened to be sitting in the back of the pickup trucks had been sitting on the ground instead.

At that point I think it would be clear that the government would not be able to argue that just because they had probable cause to search the automobiles they therefore could open the packages without a warrant.

And I suggest to the Court that it shouldn’t make a difference that they get there five minutes later and that the bales and boxes of marijuana happened to be sitting in the back end of a camper truck.

William H. Rehnquist:

But under the reasoning of the automobile search exception, it makes all the difference in the world.

If they are in an automobile, the traditional reasons for allowing search on probable cause without a warrant apply.

If they are not in an automobile, they don’t.

That’s the bright line that Ross drew, and it seems to me your argument is just tending to blur it.

William G. Walker:

My argument, if the Court please, is based on the plain reading of Ross which says that if you are in the process of an auto search you can do it, but just the justification to do an automobile search doesn’t do it for you.

I think it is analogous in a sense to the pretext arrest area, where if somebody is going 100 miles an hour and a police officer stops the vehicle because he is going 100 miles an hour, and then you smell marijuana or you see marijuana in plain view, that arrest is okay.

But if somebody is going 100 miles an hour and you stop them not for that reason but because you suspect them of being a drug dealer, and then you see marijuana in plain view, that is a pretext arrest, and it is no good.

In that situation the difference is not in what the police are allowed to do, because clearly in both cases they would be allowed to stop the driver.

It is rather in what they were doing.

Sandra Day O’Connor:

Mr. Walker, what if we disagree with you on your interpretation of Ross?

Are you going to argue that the three days or four days or whatever it was makes a difference?

William G. Walker:

Yes, Your Honor, and that is our second argument.

The second argument is that even if you assume that they could at the scene have searched these packages, that the three days later takes away the reason for allowing the search.

You have to understand that we have got a collision here between the principles that govern package searches and the principles that govern automobile searches.

Sandra Day O’Connor:

What if the truck had just been kept in the yard at the police station for three days with the packages in it, and then it was opened and they were searched?

Is that okay?

William G. Walker:

Yes, Your Honor, I think it is, and I think the cases that this Court–

Sandra Day O’Connor:

What difference could it possibly make that the packages were removed and searched after three days?

William G. Walker:

–The difference is that we have historically allowed automobile searches not only in situations where there are exigencies, but even days later, because historically people have a lesser expectation of privacy in their automobiles.

They don’t, however, have a lesser expectation of privacy in their packages, and once… if you do an automobile search three days later, then in order to complete the automobile search and because we allow searches of automobiles, we would then allow the search of the packages.

But if the packages are taken out of the automobile and stored in a place that is separate and apart from the automobile, and there is no evidence in the record that there has ever been an automobile search, then in what realistic sense can you say that the opening of these packages is an automobile search?

Sandra Day O’Connor:

In what sense can you say that the interests of your client suffer more in one case than the other?

William G. Walker:

Well, the interests of the client suffer only because the client has always had a high expectation of privacy in the package.

Sandra Day O’Connor:

Legitimate expectation?

William G. Walker:

Yes, Your Honor.

Warren E. Burger:

In the bales of marijuana?

Society’s standard, isn’t it?

William G. Walker:

In Chadwick this Court found a high expectation of privacy in a trunk even though it had contraband in it, and in Sanders the Court found–

Warren E. Burger:

It had two locks on it and it was not in an automobile.

William G. Walker:

–Well, but the expectation of privacy was the same.

William H. Rehnquist:

Well, you don’t bring the stuff in at Bowie rather than Tucson unless you want some privacy in it.

William G. Walker:

Yes, Your Honor.

0 [Generallaughter.]

And in fact, one of the Defendants testified in this case that he had a high expectation of privacy.

Warren E. Burger:

I suppose every criminal engaged in criminal activity hopes that he is going to have a lot of privacy.

William G. Walker:

I would like to answer a question that Justice Stevens posed of government’s counsel.

You asked who would the burden of proof be on with respect to the time period.

And I would suggest that it would clearly be on the government, for this reason.

We generally go by the standard that you must have a warrant in all cases unless we find an exception, and the exception must be proven by the government.

The government bears the burden of proving each essential element of an exception, and if the government wants to prove that an exception was reasonable in this case, the government then has the responsibility of proving that the time period–

John Paul Stevens:

This is really an exception from an exception, in a way, because if they are within the automobile exception, which you of course disagree, then the question is whether they got out of it by waiting too long, and I wonder if you would disagree with the Court of Appeals’ formulation of the test they are applying of “soon thereafter”.

They don’t say right away, they say soon thereafter.

William G. Walker:

–Soon thereafter I think is consistent with this Court’s dictate in Robbins where you yourself said soon thereafter, and I think what the Court found, the Court of Appeals found is there was nothing in the record to justify that it was soon thereafter, and the government has the burden of proving it is soon thereafter.

John Paul Stevens:

And you would agree that the record really does not tell us when they tested it.

William G. Walker:

I would agree with that, and for that reason I think this is a bad case for this Court to decide on certiorari, but if you are going to decide it, then I think what you have to do is to say the burden of proof is no the government to prove the exception, the exception as enunciated in Ross clearly says it has got to be soon thereafter, and there is no proof in this record that it was soon thereafter.

John Paul Stevens:

Yes, but the Court of Appeals, under the Court of Appeals’ rationale, it wouldn’t have made any difference how soon it was.

William G. Walker:

No, sir, I think the Court of Appeals said that if it had been done soon thereafter it would have been okay.

Warren E. Burger:

Do you have anything further, Mr. Horowitz?

Alan I. Horowitz:

Let me just make a brief point about this question of whether the trucks were searched.

We agree with Justice Stevens that the crucial issue here is the probable cause to search the trucks, not the subjective motivation of the officers.

But as a matter of fact here, I think the trucks were searched.

It is just that these bales were sitting open in the back of the trucks.

So it didn’t have to be very extensive search.

They came up to search the trucks, and right away they saw the packages there.

It is exactly the same case as Ross.

There is no reason to think in Ross that the police ripped the car apart after they found the paper bag.

Once they found the package, they thought they found what they were looking for, and they didn’t continue the search there.

I think it is irrelevant whether the trucks were searched later at the station, but there is no evidence… we don’t really know from the record whether they were or they weren’t.

The only evidence that I found, actually, very obliquely suggests that they were in fact searched.

That is at page 11 of the November 10 transcript.

Warren E. Burger:

Do we know whether this truck was forfeited after the event or not?

Alan I. Horowitz:

I assume that it was, but I don’t know.

And finally, if the Court is disposed to accept this argument that Ross does not apply here at all, we would suggest that a warrantless search was nevertheless permissible under the theory of Footnote 13 of Sanders.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We will resume at 1:00 o’clock in the next case.