United States v. Place

PETITIONER:United States
RESPONDENT:Raymond J. Place
LOCATION:Minnesota State Legislature

DOCKET NO.: 81-1617
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 462 US 696 (1983)
ARGUED: Mar 02, 1983
DECIDED: Jun 20, 1983

ADVOCATES:
Alan I. Horowitz – on behalf of the Petitioner
James Dexter Clark – on behalf of the Respondent
The Clerk – on behalf of the respondent

Facts of the case

(Tom Feledy prepared this summary.)

A traveler at an airport alerted the suspicions of drug agents, who, based upon his behavior and discrepancies in his luggage tags, believed he was carrying narcotics. They relayed this information to fellow agents at his destination airport. There, the agents met him and seized his bags without his consent. Ninety minutes after the seizure, his bags were subjected to a “sniff” test by a drug-detection dog. The dog signaled the presence of a controlled substance in one of the bags. The agents then obtained a warrant for that suitcase, which turned out to contain cocaine, and the man was convicted of the drug offense. The Court of Appeals reversed his conviction on the ground that the ninety minutes exceeded the investigative stop permitted by _Terry v. Ohio

, and thus violated the Fourth Amendment’s search and seizure privilege.

Question

Was the ninety minute seizure of the traveler’s luggage a valid investigative stop underTerry? Did the “sniff test” by the dog constitute a search?

Warren E. Burger:

We will hear arguments next in United States against Place.

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

Alan I. Horowitz:

Thank you, Mr. Chief Justice, and may it please the Court, the issue presented here concerns the constitutionality of police conduct undertaken to investigate suspicion of illegal activity as it arises in a public place.

Specifically, when circumstances arise that give police a reasonable suspicion that an individual is carrying contraband in his suitcase, is it reasonable within the meaning of the Fourth Amendment for the police to detain that suitcase for a limited time in order to conduct a specific limited course of investigation to confirm or dispel their suspicion, in this case, to arrange for a sniff by a narcotics-detecting dog?

The Court of Appeals held, and Respondent argues–

Sandra Day O’Connor:

Mr. Horowitz, are you contesting basically the issue relating to the seizure and detention of the luggage as opposed to the subsequent exposure to the dog sniff?

Alan I. Horowitz:

–Yes, there is no contention here that the dog sniff itself was unconstitutional, given–

Sandra Day O’Connor:

So all we are dealing with is the seizure and detention.

Alan I. Horowitz:

–Yes, the 90-minute period of time during which the Respondent was dispossessed of his luggage.

The Court of Appeals held, and Respondent argues, that such conduct is unreasonable unless the police have probable cause to believe that the suitcase contains contraband, the same standard that would justify arresting the individual.

The facts underlying this case can be summarized as follows.

Two Florida narcotics detectives on duty at Miami Airport observed respondent behaving in a manner characterized by the District Court as “odd, if not bizarre”.

To the trained eyes of the agents, this behavior seemed designed to detect surveillance, and created a suspicion in their minds that Respondent was a drug courier.

The officers also noted that Respondent had purchased his ticket with cash, and that there were certain discrepancies in the information on his baggage tags.

They approached Respondent in the boarding area, and had a brief conversation with him, but they terminated that conversation to allow Respondent to catch his flight to New York.

The Florida detectives, however, called ahead and communicated all of the information they have obtained to DEA Agent Gerard Whitmore, who was stationed at LaGuardia Airport.

Agent Whitmore and his partner watched Respondent as he alighted from the flight in New York.

They also observed him engaged in a series of maneuvers that appeared to them to be designed to detect and evade surveillance, and that indicated to these officers as well that Respondent likely was a drug courier.

After Respondent retrieved his bags from the baggage claim, the agents approached him, identified themselves, and informed him that he was suspected of carrying narcotics.

Respondent immediately stated that he had recognized the agents as policemen, a remark he had also made to the officers in Florida.

When asked whether the bags he was carrying were his, Respondent said that they were, and then he falsely stated that he had already been surrounded by a gang of agents in Miami who searched both his person and his bags.

Respondent subsequently refused a request by the officers to consent to a search of his bags, and then asked them whether he was under arrest.

Agent Whitmore informed him that he was free to leave, but that his luggage would be kept and taken to a judge to determine whether there was probable cause for the issuance of a search warrant.

The agents explained to Respondent that they would not open the luggage without a warrant, and that they would return it to him if no warrant was issued.

Some further conversation ensued, in which Respondent retracted his earlier admission of ownership of one of the bags, and asked the officers whether some arrangement could be made or whether something could be fixed up so that he could still leave the airport with his bags.

Ultimately, Respondent stated that he had pressing engagements and did not wish to remain with his luggage, and the agents gave him a number for him to contact them to arrange for the return of his luggage.

The agents then took the luggage to the Customs mail handling facility at Kennedy Airport to arrange for exposure to a drug-detecting dog.

Approximately 90 minutes after the luggage was taken from Respondent, the dog reacted positively to one suitcase.

After a search warrant was obtained, the suitcase was opened, and substantial quantities of cocaine, marijuana, and LSD were found.

The District Court denied a motion to suppress, finding that Agent Whitmore had reasonable suspicion that Respondent’s suitcase contained contraband, and that this suspicion justified the temporary detention of the luggage to arrange for the dog sniff.

Alan I. Horowitz:

A divided Court of Appeals reversed.

The majority accepted the District Court’s finding of reasonable suspicion, but held that the detention of a suitcase based on such suspicion could last no longer than could a temporary detention of a person, and hence the 90-minute detention here was unconstitutional in the absence of probable cause.

Thurgood Marshall:

I didn’t get the point.

How long did they hold that baggage?

Alan I. Horowitz:

It was 90 minutes from the time they took the bag–

Thurgood Marshall:

No, I mean afterwards, after they took it.

Alan I. Horowitz:

–Well, afterwards, I imagine they got a warrant–

Thurgood Marshall:

Don’t you know that it was over the weekend?

Alan I. Horowitz:

–I imagine they held the bag until the suppression hearing.

Once they had probable cause, they held it until they could get a warrant, and then they got a warrant and opened it.

Thurgood Marshall:

Didn’t they hold it over the weekend, before they got a warrant?

Alan I. Horowitz:

Over the weekend, then… and beyond that, I would think.

Thurgood Marshall:

Before they got the warrant.

Alan I. Horowitz:

Before they got the warrant, yes, they held it over the weekend.

Thurgood Marshall:

They held it over the weekend.

Alan I. Horowitz:

Right.

Thurgood Marshall:

That is in the record.

Alan I. Horowitz:

That is in the record.

Also, there is nothing in the record that suggests that Respondent ever called them to find out about getting his bag back, so there was nothing they could have done with it anyway.

William H. Rehnquist:

Mr. Horowitz, are you in a position to say, what if the sniffing dogs at Kennedy had come up negative, or whatever the expression is?

How much time in addition to the 90 minutes would have been required to get the baggage back to the Respondent?

Alan I. Horowitz:

Well, we can’t know in this case, because Respondent never… in the course of his conversation with them at the airport, he didn’t seem very concerned about getting his bag back.

He never gave them his address where he was going to be or told them anything about how to return it to them.

The only thing that was left was that Respondent was going to call them to arrange to get it back.

So, as I said to Justice Marshall, I’m not sure how they could have returned it in this case.

William H. Rehnquist:

Well, but is there some ordinary practice after you take a person’s bags to get it back to them?

Alan I. Horowitz:

The practice is to give it back to them as expeditiously as possible.

If they knew where Respondent was, they would just have it delivered to where he was.

If he lived ten minutes from LaGuardia Airport, it would be another ten minutes after–

Thurgood Marshall:

Well, did they know where he was?

Alan I. Horowitz:

–No, they didn’t know where he was.

He didn’t tell them.

I am sure since he knew there was cocaine in the suitcase, his idea was to get as far away as possible.

Thurgood Marshall:

They didn’t know.

I mean, eventually, they did know, though, didn’t they?

Alan I. Horowitz:

Eventually they arrested him, yes.

Thurgood Marshall:

That’s what I thought.

0 [Generallaughter.]

Are you sure about that?

Would they make arrangements to deliver the luggage the way an airline does if it has gone to Honolulu by mistake?

Alan I. Horowitz:

There is not a published policy on this.

The DEA informs me that as a general rule, they do deliver the luggage directly to the people, and it might well be unreasonable for them not to.

That is not the situation here.

Harry A. Blackmun:

But that is not in the record in any event.

Alan I. Horowitz:

Well, the record says they told him that they would return it to him.

There is nothing in the record that suggested they wouldn’t have done that.

William H. Rehnquist:

Well, of course, time means something.

If they say, we’ll return it to you in a couple of days, really, it makes the 90-minute analysis kind of fall apart.

On the other hand, if they are in a position to deliver it to him immediately after the dog sniff, then perhaps your 90-minute time period is justified.

Alan I. Horowitz:

Well, first of all, if the person is concerned about getting his baggage back immediately, an innocent person, for example, might well have gone with them and would have gotten it back immediately after the 90 minutes, even–

William H. Rehnquist:

Yes, but then your distinction about–

–Wasn’t he innocent?

Alan I. Horowitz:

–Wasn’t he innocent?

Thurgood Marshall:

Yes.

He hadn’t been convicted yet, had he?

Alan I. Horowitz:

No, he hadn’t been convicted yet but he did have cocaine in his suitcase.

William H. Rehnquist:

Your distinction then about the difference between inconvenience in seizing luggage and seizing the person kind of falls apart, if the only way the person can get his luggage back is to go with his luggage.

Alan I. Horowitz:

No, that is not the only way he can do it.

That is the most expeditious way he can do it.

He has a choice, though.

Alan I. Horowitz:

It is not like a Terry stop.

The point of a Terry stop is that he is not free to leave.

Here he is free to leave.

He is also free to go with his suitcase if he is concerned about it.

The other thing is, a person who doesn’t want to go with his suitcase but still is interested in getting it back as quickly as possible would ask… it would obviously occur to him to ask the agents how he is going to get it back, and to give them information that would enable them to return it to him as quickly as possible.

William H. Rehnquist:

Is there any way of saying from the record how long the detention of a bag that turned up negative on the sniffing would have taken if the government had had dogs at LaGuardia?

Alan I. Horowitz:

If they had dogs stationed on a permanent basis at LaGuardia?

William H. Rehnquist:

Yes.

Alan I. Horowitz:

It is hard to know.

Presumably, there wouldn’t… I guess the 35 minutes involved in driving to Kennedy would not have been needed.

It is possible the dog would be busy at another part of the airport.

There is still… I think, Justice Rehnquist, that even if there were dogs at LaGuardia, I would have to say that there might be a detention necessary to some extent.

They can’t always have the dog and the handler right at the gate where the airplane arrives.

I think the Martell case from the Ninth Circuit, with this Court’s holding involving the same issue, is a case where the dog was at the same airport, but there were still… and in fact the dog was called even before the suspects were approached, but there was still some delay involved in actually arranging the sniff.

William H. Rehnquist:

Well, there is certainly going to be some delay.

It is just a question of how long.

Alan I. Horowitz:

Yes.

The question is whether the delay here was reasonable–

John Paul Stevens:

Mr. Horowitz, could I follow up on Justice Rehnquist’s question?

I guess we are dealing in probabilities here, aren’t we?

You want the right to take the luggage away based on reasonable suspicion, which I suppose is a standard of maybe 30 or 40 percent of the time you would be right.

Doesn’t that mean that conversely, 60 or 70 percent of the time you might be wrong, and you would have to return the luggage?

Alan I. Horowitz:

–I think in theory if the Court approves of detention on a reasonable suspicion, that there would be cases where–

John Paul Stevens:

Probably over half the cases, because if you have more than 50 percent probability, you would have probable cause, and you want to have a lesser degree of probability to justify the seizures–

Alan I. Horowitz:

–That’s true, but I think you also have to keep in mind that this is an inconvenience for the agents themselves, and that they are not going to want to go through this–

John Paul Stevens:

–No, but they do want to do it in a significant number of cases in which they really are not that sure they will find anything.

Alan I. Horowitz:

–Well, I think they will want to do it only in cases where they have a really strong suspicion.

John Paul Stevens:

Well, then probable cause should be enough.

Alan I. Horowitz:

Well, what is a strong suspicion to–

John Paul Stevens:

I mean, they want to do it on less than probable cause.

Alan I. Horowitz:

–I think there are cases where the agents in their own mind, based on their experience, may have a 75 to 80 percent probability, but they know that they have not met the objective standard of probable cause for going to a magistrate.

I think it has to be recognized there are going to be cases like that, where to some extent the… part of… where they can show a reasonable suspicion–

John Paul Stevens:

Yes, but you want the rule to cover the agent who has only a 30 percent likelihood of success.

Alan I. Horowitz:

–That’s true.

Well, I mean, I have to agree that there are going to be cases… I mean, that is true even when you get a warrant on probable cause.

There are going to be cases where it turns out that the search should not have been done.

John Paul Stevens:

But, as I say, we are dealing with probability.

If you have a probable cause standard, why, then the likelihood of an unsuccessful search is much less.

Alan I. Horowitz:

Exactly, but the intrusion that is involved in those cases is much greater, and therefore here the probability should be lowered.

That only makes sense.

Warren E. Burger:

Is there any explanation in the record, or do you have one, for the delay from Friday to Monday?

Alan I. Horowitz:

As I understand it, the agents–

Warren E. Burger:

Aren’t there magistrates on duty over the weekend in the Southern District, if that is where this was?

The Eastern District.

Alan I. Horowitz:

–The agents were informed by the U.S. Attorney’s Office in the Eastern District of New York that no magistrate was available at that time until Monday.

Warren E. Burger:

In some districts–

Alan I. Horowitz:

Now, what they would have done if Place had called and sought to get his luggage back at that point, I’m not sure, but at least in this case, since there wasn’t anything else they could do with the luggage anyway, it didn’t seem unreasonable to wait until Monday.

Warren E. Burger:

–Is it not true that in some districts there is 24-magistrate service, seven days a week, if you know?

Alan I. Horowitz:

I don’t know for sure.

I know that magistrates are supposed to be on duty other than from 9:00 to 5:00 during the week, but it may be that there is a reluctance, that there is some scale as to when they should be bothered at those times.

Warren E. Burger:

There is nothing in the record to show why, though.

The only thing in the record is that they called the U.S. Attorney and he said, wait until Monday.

Alan I. Horowitz:

That’s right.

Warren E. Burger:

That’s all the record shows.

Alan I. Horowitz:

That’s correct.

I should say that at this time, they had probable cause, though.

I mean, at that point, we are not dealing any more with the detention on the basis of reasonable suspicion, but a detention on probable cause, which is set forth in Chadwick, that they are entitled to detain the luggage until they can get a warrant.

The constitutional provision involved here protects individuals against unreasonable searches and seizures.

Now, it is quite clear that the probable cause standard which is required for the issuance of warrants is not a prerequisite to every search and seizure.

Reasonableness does not necessarily equal probable cause.

Alan I. Horowitz:

I think the basic principles in this area are fairly well settled.

We know that a permanent seizure or the arrest of a person can be conducted only on the basis of probable cause.

Similarly, the permanent seizure of effects is generally justified by probable cause.

On the other hand, Terry and its progeny recognize that a temporary investigative detention of a person can be conducted on less than probable cause, on a reasonable suspicion of criminal activity.

By the same token, as is demonstrated by Van Leeuwen, a temporary detention of effects can also be based on a reasonable suspicion.

Sandra Day O’Connor:

Mr. Horowitz, presumably the justification for the Terry type search and detention of the person was the protection of the officers from the use of weapons by the person detained.

That justification, of course, is not present with the seizure and detention of luggage.

Alan I. Horowitz:

I don’t think that’s really the justification for the investigative stop in cases like Terry, Brignoni-Ponce, and Michigan against Summers.

That was the justification for the frisk in Terry, for the search, but of course the officer in Terry was not in any danger until he actually approached the subject.

He could have turned around and walked around the block.

What was the justification for the approach in these cases, and is, I think, well set forth by the Court in Adams against Williams, is that an officer, when he has a strong suspicion that a crime was about to be committed, is not supposed to just turn his back and walk away and sit idly by while it happens.

Michigan against Summers and Dunaway against New York, however, state that there are time limits on the detention of a person that can be based on reasonable suspicion.

At some point, when that temporary detention becomes close to the intrusiveness of an arrest, it must be justified by probable cause.

Now, the real issue in this case is whether the Court of Appeals is correct in saying that the exact same standard that applies to when a temporary detention of a person becomes overextended, does that also apply to the temporary detention of effects, even though the intrusion onto a person’s liberty is obviously much less?

We submit that there cannot be this equality, and that it must be that a detention of effects can be extended for a longer period of time, for example, the 90 minutes involved in this case.

The Court has on many occasions stated the basis on which the reasonableness of a police action is to be determined.

It is judged by balancing the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government concerns.

Now, in making that balancing here, I think the strong government concerns involved are clear.

The government has a vital interest in alleviating the narcotics problem in this country, and in detecting and apprehending drug offenders.

When officers reasonably suspect an individual of transporting narcotics through an airport, they obviously have a strong interest in preventing him from escaping and placing those drugs irretrievably into the chain of distribution.

That interest is much stronger in a case like this one, where they know that if they can preserve the status quo for a short time, they can either confirm that suspicion or it will be dispelled.

Thus, under the rule established by the Court of Appeals, the officers in this case were placed in the position of allowing a person they strongly suspected of carrying drugs to escape from right under their noses, while they are left with the knowledge that if they had just had a little bit more time to investigate, they could have developed probable cause, arrested him, and seized the drugs.

Now, weighed against this strong government interest is what we feel is a fairly limited intrusion caused by the temporary detention involved here, and that is simply the dispossession of Respondent’s luggage for the time required to complete the dog sniff.

At the outset, let me say that it has never been contended that this is no intrusion at all.

It is an interference with the Respondent’s possessory interest in his suitcase for a limited period of time, and it is a seizure that is covered by the Fourth Amendment.

What is contended here is that this intrusion is sufficiently small that it is justified by reasonable suspicion of criminal activity, and does not require the strictest standard of probable cause.

Now, to illuminate this point, it is useful examine the detention here in light of the intrusive aspects associated with other police actions that normally require probable cause.

The biggest category of these, of course, is investigative searches, which usually can be conducted only on probable cause.

Those, of course, involve an invasion of privacy, which the Court has many times recognized as the core of the Fourth Amendment protection.

In this case, there was no search until a warrant based on probable cause was obtained.

Alan I. Horowitz:

There was no invasion of privacy whatsoever.

The principle that the core protection of the Fourth Amendment is privacy finds its expression in many areas of Fourth Amendment law.

For example, in the warrant area, the Court has recognized that the protections of a warrant are much more necessary in the area of searches than they are in seizures.

Warrantless seizures from public places are generally recognized as reasonable under the Fourth Amendment, as are warrantless arrests.

Similarly, in Chadwick, a case where this Court held that the police were not allowed to search a footlocker in that case on the basis of probable cause until they had obtained a warrant, the Court also stated that it was clear that they were entitled to detain that footlocker without a warrant while they were seeking the issuance of the warrant.

And also, in the immigration area, the Court has recognized that roving border patrols are empowered to effect seizures of cars suspected of carrying aliens on the basis of reasonable suspicion, but they are not empowered to search those cars without probable cause.

Sandra Day O’Connor:

Mr. Horowitz, would you think that you would apply the same theory you are arguing should be applied here to the seizure and detention of a handbag or briefcase from a person?

Alan I. Horowitz:

I would say yes.

The short answer is yes.

I think the police are still entitled, that there is still a much lesser intrusion involved in the seizure of something like that.

Sandra Day O’Connor:

Do you think that it might be a sufficient intrusion that it obviously involves detaining the person?

For instance, if your keys and money and all the means of getting away from the airport are contained in your purse or briefcase, is that not in effect a detention of the person?

Alan I. Horowitz:

I don’t think so, Justice O’Connor, because as we said in our brief, we think it would be unreasonable for the police to keep all of that material.

I mean, there is no reason why they can’t allow persons to take keys and their wallet or something like that out of a pocketbook.

In this case, of course, you don’t really have anything like that, because the luggage was checked.

William H. Rehnquist:

But your opponent contests the government’s assertion there, and says that the government, if it is sequestering an effect for purposes of later search, isn’t going to allow unilateral access to a bag to get something out of it.

Alan I. Horowitz:

Well, they may not allow private access in the sense of a person going behind a locked door and taking whatever he wants out and disappearing, but certainly a person could open the suitcase, say, somewhere within the view of the officers, but in a way that doesn’t expose the other contents of the suitcase.

William H. Rehnquist:

Well, perhaps it is too short a time for argument to explain how that might be done.

Your saying so doesn’t convince me that it could be done.

Alan I. Horowitz:

Well, let me just say, if you had a briefcase sitting on the desk, and you opened it with the top towards me so that I couldn’t see what was in there, and took a couple things out and then closed it again, I think the officers would be entitled to see what you had taken out of the briefcase, but I don’t see why they would see what is in there.

John Paul Stevens:

Isn’t your distinction between a search and a seizure getting a little fuzzy right now?

Alan I. Horowitz:

I don’t think so, Justice Stevens.

I mean, we are talking about things that a person–

John Paul Stevens:

Well, you do want to watch what is taken out, though.

Alan I. Horowitz:

–Yes, we do want to watch what is taken out.

John Paul Stevens:

You wouldn’t let him go into the men’s room, say, all by himself with the suitcase and perhaps dispose of its contents, or something like that.

Alan I. Horowitz:

I agree, but I don’t consider that a search of the suitcase.

If the person says he needs his car keys out of there, and he is asked to show his keys, I just don’t think that many persons would consider that much of an intrusion on their personal rights to have to show their car keys to agents.

I think most people would recognize that that is a perfectly reasonable thing for the agents to do in these circumstances, once they were going to detain the suitcase.

This case similarly involves no detention of the person.

Alan I. Horowitz:

Dunaway and Summers say that even a temporary detention can require probable cause if it rises to a level of intrusiveness close to that associated with an arrest.

This case is clearly nothing like an arrest at all, since the person is not detained.

Finally–

John Paul Stevens:

Let me ask you another question, following up on Justice O’Connor’s.

Supposing you didn’t have many, many pounds, as you did in this case, but you have a purse or a briefcase, and some concentrated item.

I don’t know if any of these drugs can be detected by small quantities.

Small enough that they might be concealed within a small glassine package or something that might in turn be inside the wallet where there is money.

Would you say that the agent could supervise the withdrawal of the wallet from the purse to be sure there is nothing inside the wallet?

Alan I. Horowitz:

–I think you would have to have some reason to suspect that there were… in the wallet.

John Paul Stevens:

You have reasonable suspicion.

That is the basis… that is why we got into the–

Alan I. Horowitz:

Yes, I understand you have reasonable suspicion that they are contained somewhere in the briefcase, but I think it would be an impossible–

John Paul Stevens:

–Including possibly in the wallet.

Alan I. Horowitz:

–Including possibly in the wallet, but I think you might need somewhat more focused suspicion if he was going to ask for a search of the wallet.

I think he would be entitled to look at the wallet certainly from the outside, which might give him some indication of whether there was something else concealed in there.

Again, the kind of suspicion that arises in this case doesn’t usually focus on wallets and briefcases.

John Paul Stevens:

Well, supposing the suitcase has in it a big paper bag, and the man says, I have some private papers in this paper bag that I want to take out of the suitcase, and you think, well, maybe that is really the marijuana.

What do you do in that case?

Do you let him take the paper bag, or do you examine the papers?

Alan I. Horowitz:

Well, I think the officer would be entitled to say that I am not going to let you leave with the paper bag unless you let me see to some extent what is in it.

John Paul Stevens:

Then you have not solved Justice O’Connor’s predicament.

Alan I. Horowitz:

Well, first of all, I mean, we are talking aut the general rule here.

All of these questions, I think, are directed at some exceptional case where the person says he has some private matter, and in this case, these suitcases that were actually checked with the airline.

Sandra Day O’Connor:

Well, can you really say that, because most people put private personal possessions in their luggage and handbags and briefcases.

I think it is rather a common problem, so you need to be aware of it when you are trying to urge an expansion of a–

Alan I. Horowitz:

Well, I certainly don’t think that people put the things that they can’t do without for an hour and a half in the luggage that they check with the airlines.

If they do, they are making a big mistake, because they are likely, without any intervention from DEA agents, to find that their luggage has not arrived.

The case of hand luggage is a little different.

I think in that case it is much more credible if a person claims that he has something that he has to be able to take out, but I do think the agents… it is only reasonable to allow the agents to take some precautions when they allow the person to remove it.

Perhaps I should just save the rest of my time for rebuttal.

Warren E. Burger:

Mr. Clark.

James Dexter Clark:

Mr. Chief Justice, and may it please the Court, I had not planned to address myself to specific factual issues or discussions.

However, in light of some of the questions from the Court, I would like to speak to the resolution of some of the facts that have been raised by the members of the Court.

For example, I think it was pointed out that at Miami, when Mr. Place was initially detained by the public safety officers there, he was detained and certain information was acquired under the so-called Drug Courier Profile.

What was omitted was the fact that in light of the investigation conducted by these officers, their suspicions were quelled.

For example, in the case of Ballard from the Fifth Circuit, where the Drug Courier Profile was conveniently itemized, one of the things that these officers look for is whether or not the ticket is issued in the same name as the identification that is produced by the detainee.

In this particular instance, the name coincided without exception.

Also, in the Ballard case it is pointed out that one of the facts that they look for is whether or not the luggage is hand-carried luggage, and whether or not he is only carrying one bag.

William H. Rehnquist:

Well, Mr. Clark, you say the suspicions in the case of your client were quelled at Miami.

Then why did the Miami agents call ahead to LaGuardia?

James Dexter Clark:

The reason they called ahead to LaGuardia was, in the words of Judge Platt, the presiding District Court judge, in his opinion, was why Mr. Place made a mistake.

As he was leaving to go and board the plane, he turned to the officers and addressed them and said, I knew that you were police, that you were law enforcement authorities all the time.

Based on that, Detective McGavock, who was the primary investigating officer, became suspicious, and ran down and retrieved information from the name tags on the two suitcases.

William H. Rehnquist:

It isn’t really accurate, then, to say their suspicions were quelled, because they did call ahead.

James Dexter Clark:

That’s correct.

But for that particular comment, the officers did say on the record that their suspicions were quelled, and that is why they did not further detain him, but actually allowed him to plane.

Sandra Day O’Connor:

Well, I thought they discovered that he had a false address on his luggage tags.

James Dexter Clark:

That is not correct, Your Honor.

I believe a specific reading of the record will determine that the information that was relayed by Detective McGavock to Agent Whitmore in New York made no mention of this supposed disparity.

As a matter of fact, it is pointed out in the record–

Sandra Day O’Connor:

But the disparity existed in fact.

James Dexter Clark:

–The disparity existed in the fact that there was a strikeover in the numerical sequence of the numbers.

The addresses were 1885 South Ocean Boulevard, 1865 South Ocean Boulevard, which apparently had some degree of raising Detective McGavock’s suspicions.

That fact was not relayed to Gerry Whitmore in New York.

Sandra Day O’Connor:

But in any event, it didn’t satisfy the police in Miami.

James Dexter Clark:

That’s correct.

We do not dispute that they called ahead and alerted DEA to Mr. Place’s imminent arrival on the airline flight.

The other thing that I would like to point out is that although the officers had the two suitcases subjected to a dog sniff approximately 90 minutes after the bags were seized, they achieved a result of positive on one bag and nothing on the other bag, and they took no steps during the weekend to contact Mr. Place so he could get back the bag that was not the subject of the search warrant.

Sandra Day O’Connor:

But I thought he hadn’t given them an address or a means whereby they could contact him.

James Dexter Clark:

They had his address.

James Dexter Clark:

They had discovered it through their own investigation.

They also had his telephone number.

They also had his credentials as being verified by his driver’s license, and his ticket coincided.

It was certainly not incumbent, at least at this point, on Mr. Place to seek out his bags.

We have already been pointed out that at least 50 percent or more of these cases are not going to turn out to be subjects of investigation, and yet there are no steps, at least known to the government at this point, as to how the DEA plans to get these bags back into people’s hands.

William H. Rehnquist:

But the return of one bag and the search of the other really wouldn’t help your client much in this case, would it?

James Dexter Clark:

Certainly not.

But it just goes to show that the government’s position that a detention of bags, and I might add, so far, it has been approaching three years since the bag has been detained, both bags, that is, that such a detention is not one that is involving Fourth Amendment rights.

They seem to say that personalty, items of personalty should be adjudged by some lesser standard.

And with that, I would like to turn from the discussion of the facts and go to what we feel is the thrust of our legal argument, and it is basically a two-pronged argument.

First, we ask that this Court not expand the so-called Terry exception to the probable cause warrant requirement, and second–

Warren E. Burger:

By stereotypes, you mean applying the profile?

James Dexter Clark:

–I am sorry?

Warren E. Burger:

You used the term stereotypes.

Do you mean by that–

James Dexter Clark:

The so-called Terry exception.

Warren E. Burger:

–Oh, I thought you said stereotypes.

James Dexter Clark:

I am sorry, Your Honor.

The so-called Terry exception.

We ask that this Court not expand that exception to include these detentions that are actually seizures of items of personalty, and we would also ask the Court to reject the proposal of the government in judging these types of seizures on an ad hoc basis to determine whether or not they are reasonable under the Fourth Amendment to the U.S. Constitution.

The Respondent rejects–

Byron R. White:

Those are your two major arguments?

James Dexter Clark:

–Those are my two major arguments.

Byron R. White:

I take it that the Court of Appeals just assumed that there was reasonable suspicion to make any stop at all.

James Dexter Clark:

That is correct.

Byron R. White:

They did not decide that.

James Dexter Clark:

That is correct.

Byron R. White:

Now, do you submit here any argument for affirmance based on the fact that there wasn’t even reasonable suspicion?

James Dexter Clark:

Your Honor, we concede that there was reasonable suspicion to approach Mr. Place.

We attempted to raise–

Byron R. White:

Well, was there reasonable suspicion to justify whatever a Terry stop is?

James Dexter Clark:

–Well, quite frankly, we argued this at the Second Circuit, and cross-petitioned to this Court, and we did take the position that the suspicions that were raised by the Drug Courier Profile were not sufficient to warrant the initial approach.

Byron R. White:

You have filed a cross-petition here?

James Dexter Clark:

It was denied, Your Honor.

Byron R. White:

Yes.

So we judged the case on the ground that–

James Dexter Clark:

That reasonable suspicion existed.

Byron R. White:

–Well, the–

James Dexter Clark:

Perhaps.

Byron R. White:

–the District Court… I mean, the Court of Appeals didn’t decide that issue one way or another.

It just assumed it.

James Dexter Clark:

That is correct.

Perhaps they felt that the case could also be reversed on the violation of the constitutional principles of unreasonable search and seizure of the bags, and did not want to reach the issue of the Drug Courier Profile search, which they have reached on numerous occasions due to the proximity of LaGuardia Airport, being located in the Second Circuit.

The other thing that we would like to point out is, we reject the government’s position that seizures of suitcases are less intrusive than seizures of people, and I believe Justice O’Connor and Justice Stevens have already raised the question as to what is a person going to do, and the question also about the facts of the wallet and whether there might be some glassine item in it.

I would like to address that particular issue that as to police conduct, I thin we have some insight into how law enforcement authorities are going to act in situations where a person is, as Justice O’Connor suggested, going to have to go into their briefcase to retrieve their automobile keys.

It is in the record in this case that in Miami, Detective McGavock, while watching Mr. Place open a hand-held bag that he had with him, positioned himself so that he could view the contents of that bag.

I think that it is not a supportable position to think that law enforcement authorities are going to allow persons who are being detained under the suspicion that they are carrying narcotics to go into their bags to retrieve keys or other items that they need at that very moment.

As far as the proposition that seizures of items of personalty are less intrusive than seizures of persons, that cannot stand.

First of all, in order to detain, a term which I use because I have been more or less led into it by the government… detain, detain, detain… I prefer the term seize.

Warren E. Burger:

You are speaking of the person or of the bag?

James Dexter Clark:

Of the bag.

The reason you have to seize a bag, and you cannot detain it, and the reason why it is much more constitutionally offensive, is that you cannot detain a bag without also detaining the owner of the bag.

The entire premise behind Terry was to allow a brief detention and investigatory questions by law enforcement authorities to determine the identity of the suspect and to ask that suspect to explain his presence in a particular area, to dispel the suspicions that the officers might have.

Thurgood Marshall:

And to pat him down.

James Dexter Clark:

Pardon me?

Thurgood Marshall:

And to pat him down, if there was some–

–And to… Terry was, pat him down.

James Dexter Clark:

That is correct.

William H. Rehnquist:

In this very case, your client’s baggage was seized, and he went his way.

James Dexter Clark:

He certainly went his way, but the point is that the detention of the bag is even more intrusive because his bag did not go its way, and it is only through the questioning of Mr. Place or someone in his position that suspicions can be quelled as to a bag.

James Dexter Clark:

Therefore, you have to detain both.

William H. Rehnquist:

You say that the government would be in a better position here if it had not only detained the bag and taken it to Kennedy, but insisted that your client go with it.

Is that your position?

James Dexter Clark:

My position would be that, first of all, if they had insisted on that, they would have arrested Mr. Place as well as the bag, and they admitted… the officers even admitted to Mr. Place that they did not have even a reasonable enough suspicion to hold him.

They did feel that they had a reasonable suspicion to hold the bags.

I do not think that they would be in a better position.

The only position that I can offer the government to place them in a better situation in this case would have been to have had a dog with them at the time the bags and Mr. Place were seized.

And the only way I can justify that is not because the detention becomes less offensive, but because if the dog had been present, the dog could have smelled the bags at that time and made the determination.

William H. Rehnquist:

Certainly some minimal detention is justified under Terry, is it not, if there was in fact reasonable suspicion?

James Dexter Clark:

Some reasonable detention of the bag?

William H. Rehnquist:

Of the bag.

James Dexter Clark:

Your Honor–

William H. Rehnquist:

I don’t see how you can read Van Leeuwen and conclude otherwise.

James Dexter Clark:

–I can read Van Leeuwen and conclude otherwise on several significant points.

Byron R. White:

What are they?

James Dexter Clark:

The significant points are that first, in Van Leeuwen, the owner of the two parcels, the defendant, voluntarily relinquished those bags into the U.S. mail.

These two suitcases were seized from the immediate possession and control of Mr. Place.

William H. Rehnquist:

But the Van Leeuwen court didn’t rely on that at all.

It said that there had been a detention that wouldn’t have been justified under less than reasonable suspicion.

James Dexter Clark:

The way I understand Van Leeuwen, they said that at some point in time, even a seizure such as the one in this case will become unreasonable, but the reason that such a seizure in the Van Leeuwen case was not considered unreasonable was because the defendant had voluntarily relinquished the bags, and for the period of time that they were detained, the defendant in that case was probably not even aware that a seizure was occurring, because until the addressee in Van Leeuwen became aware that the parcels had not arrived, and contacted Mr. Van Leeuwen, he probably was going about his merry way, and his mobility was not restrained, as it certainly was in this instance.

Also, in Van Leeuwen, the probable cause, the factual determination of the facts that eventually led to probable cause for the search of the two parcels, was obtained through independent sources.

William H. Rehnquist:

Well, but that may factually distinguish Van Leeuwen, but the case does hold that a parcel as opposed to a person may be subjected to some sort of reasonable detention on a Terry type analysis, and not requiring probable cause.

James Dexter Clark:

The case seems to suggest that, but I would also point out that the case, by language utilized in the case itself, limited the holding of that case to the facts as presented by that case.

We are here today to determine whether or not this Court is going to take the position that indeed bags, items of personalty, can be detained on less than probable cause.

We would suggest that they not be, because of the fact that such detentions, if you want to call them detentions, are more intrusive than detentions of personalty.

Another reason that we say that such a detention is more intrusive is that an item of personalty by its very nature, you either have it or you don’t.

There is no sliding scale of investigation that can eventually allow this bag to leave the presence of the officers until they want it to leave the presence of the officers.

You are either possessed of the bag or you are dispossessed.

In a Terry situation involving a human being that can verbalize and talk and quell suspicions, then obviously the detention is allowable.

But a bag should be treated differently.

James Dexter Clark:

We would also suggest that in this same vein, the suitcases were, if you will, arrested, were arrested, and that we all know that when you arrest something, a person, probable cause is required.

The police, the drug enforcement agents had custody and control over these bags.

As a matter of fact, on cross examination, Detective Whitmore, when I posed to him the question,

“Detective Whitmore, when you seized these bags. “

and when he responded with the answer, he said,

“You mean, when we took the bags. “

And I asked him if he had a problem with me using the word “seize”.

And he said,

“Yes, I have a problem with you using the word “seize”, because to me that means that we had taken custody and control of these bags. “

I said,

“Well, when you took these bags, you had custody and control of them, didn’t you? “

He said, “Yes”.

“When you took these bags, you didn’t give Mr. Place any choice as to whether you were going to take them or not, did you? “

And he said, “No”.

And I said,

“Well, then, you seized them, didn’t you? “

And he said, “Yes”.

So, the bags were seized.

They were arrested.

Probable cause is required.

The suitcases were immobilized.

The suitcases became the focal point of the investigation.

The suitcases were moved from one location to another.

Warren E. Burger:

You know, as we hear these cases, Mr. Clark, we are all aware that we don’t judge the validity of a search by the fruits of a search.

Nevertheless, three or four times a week we sit here and hear counsel making all the points that are made, and in every case the only reason the case is here is because heroin or opium or cocaine was discovered.

Now, it isn’t your job, of course… you are the advocate here.

It isn’t your job to say how the government should do it, but only how the government can’t do it.

It is an almost intractable problem, isn’t it?

James Dexter Clark:

Your Honor, I believe… I was going to reserve for my closing statement a request that prior to reaching a decision in this case, that the members of this Court review the opinion that was written in Coolidge versus New Hampshire.

I was on the airplane yesterday coming up here, and I had a companion and was attempting for not the first time to explain some of the nuances and intricacies of a Fourth Amendment case, and I had an opportunity to review Coolidge versus New Hampshire, and in so doing–

William H. Rehnquist:

Is that the Court’s opinion or the opinion of the plurality?

Which part of Coolidge?

James Dexter Clark:

–Section 2, and as I recall–

Byron R. White:

Part of Section 2 is only a plurality.

James Dexter Clark:

–Yes, but anyway, at Section 2, Page 454, Mr. Justice Bradley is quoted, and then Mr. Justice Stewart, who wrote the opinion, adds some language of his own, and in reading that particular section, I handed it to my companion and I said, read this.

I said, this is why we are going to Washington today, and this is why I hope the Supreme Court affirms the decision of the Second Circuit Court of Appeals.

And I can presume that the Court is very concerned about the governmental interests involved in the narcotics trafficking problem today, but I don’t think that the governmental interest in narcotics and the trafficking in narcotics is any more important than the governmental interest in preventing murder or armed robbery.

I think the governmental interests that are intended to be balanced in determining whether or not Fourth Amendment searches and seizures are reasonable are the types of governmental interests that we have in the Brignoni-Ponce case, involving border crossings by immigrants or aliens.

Warren E. Burger:

Well, in murder cases and kidnapping cases we don’t have uniformly a search and seizure problem, and almost uniformly and invariably we have that problem in drug prosecutions.

James Dexter Clark:

I think that is probably all the more reason that this Court should be very aware and cognizant of the preservation of Fourth Amendment rights which have been jealously guarded by this Court throughout its history, most significantly in the twentieth century, but certainly from the beginning of the twentieth century, when the cases that are cited in our brief as being the historical precedents for Fourth Amendment rights… I hate to see an erosion of those rights merely directed at the prevention of narcotics trafficking.

I think that is a selective governmental interest that will not preserve the integrity of the Fourth Amendment as it presently stands before this Court.

I would also like to point out to the Court that the government apparently takes the position that privacy denotes only an opportunity to be free from visual inspection.

In other words, the position that because the bags were not searched, that is, opened, until a warrant had been issued, the intrusion into Mr. Place’s privacy was protected, I think that is a rather narrow view of what privacy is.

Privacy certainly has as one of what I perceive to be three elements the visual inspection, but it also has the right to be free from governmental… unwarranted governmental interference, and the right to personal security.

Personal security and the right to be free from interference were certainly not preserved in this case.

I believe that in the cases of Chadwick and Sanders, this dichotomy or actually trichotomy, three elements of privacy, is recognized.

In Chadwick and Sanders, of course, we were dealing with items of personalty again.

Items of personalty were seized after the officers had probable cause.

They were not searched, they were not visually inspected until after a warrant had issued.

This Court accepted that proposition, and noted that the contents of the bag were the primary privacy interest of these two defendants, Sanders and Chadwick, and that those particular privacy interests were protected.

I see implicitly in those decisions the fact that this Court recognizes that there is more to privacy than being protected from a visual inspection.

Warren E. Burger:

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

James Dexter Clark:

Thank you, Your Honor.

Warren E. Burger:

Does Mr. Clark have any time remaining?

The Clerk:

Five minutes and 30 seconds.

Warren E. Burger:

Very well.

James Dexter Clark:

Thank you, Mr. Chief Justice, and members of the Court, without being redundant, I do want to just basically pick up where I began by stating that I was pointing out to the Court what I feel to be significant in that it is implicitly present in Arkansas versus Sanders and the Chadwick cases, and that is, I have divided the right to privacy into three elements as opposed to the one which is proposed by the government.

It is the government’s proposition that privacy includes only protection from visual inspections in these types of cases.

I would also include among the right of privacy the right of personal security and the right to be free from unwarranted intrusions.

In the Chadwick case and in the Sanders case, the items of personalty, the footlocker, baggage that was seized, probable cause was in existence at the time of the seizure, and that, to me, indicates that personal security and freedom from unwarranted intrusions was protected.

James Dexter Clark:

Obviously, that was not the case in this particular instance, because personal security and the right to be free from intrusion was certainly not afforded to Mr. Place.

I would also like to bring to the Court’s attention what I feel is not the status of the law with regard to the reasonableness proposition that is being urged by the government.

They would have the Court base all Fourth Amendment search and seizure questions on the test of reasonableness, and I believe that they will rely, as they have indicated in their brief and especially in their reply brief, on Michigan versus Summers, I do not believe that the reading of Michigan versus Summers gives an ad hoc reasonableness test as the standard for measuring Fourth Amendment search and seizure questions.

And I look back and take the Michigan versus Summers case, by balancing it against Dunaway, and in writing the Summers case, Mr. Justice Stevens took pains to point out that the seizure in that case was distinguishable from that in Dunaway.

Dunaway goes directly to the point of rejecting the reasonableness test, and in the Summers case, it was pointed out that the distinguishing factors were that a warrant to search the house where Mr. Summers was had previously been issued establishing that there was probable cause to search that particular house.

Also, it was pointed out that the detention of Mr. Summers in the context and under the circumstances of the factual situation was not the type of detention that would lead to prolonged interrogation, as was the case in Dunaway.

So, I don’t believe that Michigan versus Summers stands for the general proposition that reasonableness is a standard by which all Fourth Amendment questions can be tested.

As a matter of fact, to do so, as pointed out in the Dunaway case, would be to put in the hands of law enforcement officers the first instance of determining whether or not reasonableness existed.

In closing, I ask and urge this Court to affirm the Second Circuit’s decision, and I ask that this Court utilize the issues which are raised by this case to inform us all that Fourth Amendment rights will not be diluted as proposed and put forth by the government in this case.

Thank you.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Horowitz?

Alan I. Horowitz:

A view brief points, Mr. Chief Justice.

I think the Court has to consider the implications of Respondent’s argument that this detention here can be effected only on the basis of probable cause, keeping in mind Justice Stevens’ comment that we are dealing with probabilities here.

On the basis of probable cause, even sometimes probable cause only in the judgment of an officer, and not approved by a magistrate, police are entitled to search a person’s effects.

They are entitled to search his home.

They are entitled to arrest him.

They are entitled to imprison him, even though in some of those cases, because of the very nature of the probable cause standard, we know that the suspicion is going to turn out to be wrong.

Here, the intrusion is so much less that it must be reasonable to allow the intrusion on the lesser standard of reasonable suspicion, even though in some cases this may permit a baggage detention where the person turns out not to have contraband in his suitcase.

I think to graphically illustrate the sort of reasonable suspicion standard that we are talking about, you might consider a case where the police have reasonable suspicion to believe that some of, say, a group of ten people have contraband in their suitcases, and they know that three or four of them have heroin in their suitcase, but the other six or seven do not.

Is it really reasonable for the police to allow all ten of them to walk out of the airport, knowing that they are allowing 40 pounds of heroin to go, or should they be able to detain all ten suitcases for the hour and a half necessary to bring a dog over to sniff them?

I would also say that it may be that in some of these cases, there is going to be some slight incremental intrusion that does not occur in the general case just because of the detention, the cases that Justice O’Connor and Justice Stevens were talking about, where perhaps a person has to take some personal effects out of his suitcase that he needs immediately.

I should say first that this is the typical case, the one we have here, and none of these lower court cases that are cited in the briefs… there have been many cases like this already.

They all involve luggage, and none of them involve cases where personal effects had to be taken out, but even in those unusual cases, I still think the detention is reasonable.

The additional intrusion of having to show your keys or something like that to the officer is really quite incremental, especially in the airport context, where things like carry-on luggage and purses have been already subjected to a search through an ex-ray machine before you could get on the plane.

In an unusual case where there is a drastic inconvenience to the person involved in a luggage detention, that might be different, and the Court could consider that case when it comes up.

I would also like to make a couple of factual points.

There was some discussion about why one of the bags wasn’t returned over the weekend.

In fact, the agents applied for a search warrant for both bags, so it was certainly necessary for them to keep them both during that time.

As far as why they didn’t apply for a warrant before the weekend, we don’t necessarily say that that was correct.

Alan I. Horowitz:

They probably should have applied for it over the weekend.

But I don’t think that has anything to do with the issue presented in this case, which is just the legality of the detention for the period required to establish probable cause.

It might be, if for some reason the discovery of the evidence was somehow a fruit of the additional detention that took place over the weekend, that that would be a different question.

But it is not presented here.

Byron R. White:

Do you think the issue of reasonable suspicion is foreclosed?

Alan I. Horowitz:

Well, ordinarily the Court is entitled to affirm the judgment below on other grounds.

Briefly, it wouldn’t do that in a case where the Court of Appeals itself didn’t reach that.

I think it is open on remand.

I think the fact that the Court denied the cross-petition in this case certainly suggests to the parties that it wasn’t going to consider that issue here.

It is still open in the Court of Appeals.

Byron R. White:

I suppose if there was not reasonable suspicion, the search of the luggage might be a fruit.

Alan I. Horowitz:

Well, if there was not reasonable suspicion, then they would not have been entitled to detain the luggage.

Byron R. White:

Yes.

Alan I. Horowitz:

I mean, we concede that they had to have–

Byron R. White:

But they did.

But they did, and found the heroin.

And the warrant would be–

Alan I. Horowitz:

–That’s right.

No, I agree.

The warrant would probably be a fruit.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.