United States v. Ross

PETITIONER:United States
RESPONDENT:Ross
LOCATION:Vehicle of Ross

DOCKET NO.: 80-2209
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 456 US 798 (1982)
ARGUED: Mar 01, 1982
DECIDED: Jun 01, 1982

ADVOCATES:
Mr. Andrew L. Frey – Argued the cause for the United States
William J. Garber – Argued the cause for the respondent

Facts of the case

Acting on a tip that Ross was selling drugs from his car in the District of Columbia, police officers pulled Ross over, opened his trunk, and discovered a bag of heroin. After returning to the station, another search uncovered $3200 in cash. Officers acted without a warrant in each search.

Question

Did the police violate the Fourth Amendment?

Warren E. Burger:

We will hear arguments first today in the case of the United States against Ross.

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

Mr. Andrew L. Frey:

Thank you, Mr. Chief Justice, and may it please the Court, this case is here on a writ of certiorari for the United States Court of Appeals for the District of Columbia Circuit, which reversed Respondent’s conviction on the ground that certain evidence should have been suppressed.

The evidence was heroin found in a paper bag seized on probable cause from the trunk of Respondent’s automobile and searched without a warrant.

So the issue in this case is whether police officers who possess probable cause to search a paper bag found during the lawful search of an automobile must procure a search warrant before examining the contents of that bag.

I think this divides itself into two sub-issues, first, in general, whether a paper bag is a container of the kind to which the warrant requirement applies, and secondly, assuming that it is outside an automobile, whether the requirement applies when it is discovered in the course of a probable cause search of an automobile.

I don’t usually employ visual aids in my arguments before this Court, but I think in this case it is important not to stick solely to abstractions, so I do have a paper bag which resembles, although it is not the actual bag that was involved in this case.

Now, what this case is about is whether the Fourth Amendment requires officers who needed no warrant to arrest Respondent, no warrant to carefully examine the passenger compartment and glove compartment of his car, and to unlock and search its trunk, to stop their search upon coming across a paper bag like this, which they have probable cause to believe contains heroin, to carry the bag carefully to the courthouse, to spend several hours preparing and presenting a warrant application to a magistrate before they may open the top of the bag and look inside.

Mr. Frey, can I ask a question about the visual aid?

Mr. Andrew L. Frey:

Yes.

Is that bag stapled together?

Mr. Andrew L. Frey:

No, it is not.

Would it make any difference in your argument?

Mr. Andrew L. Frey:

Well, I am sure that I would contend for the same result, for a number of reasons which I will get to, but it is potentially a relevant consideration, because the steps that may have been taken to preserve an interest of privacy have some bearing, in my view, on the application of the warrant requirement.

I think stapling a paper bag together would clearly be insufficient to activate the requirements.

Now, I would like to make some preliminary observations–

What could you do with it?

Mr. Andrew L. Frey:

–Excuse me?

What could be done with it if stapling is not enough?

Mr. Andrew L. Frey:

With a paper bag?

Yes.

Mr. Andrew L. Frey:

Well, I am not sure that anything could be done with a paper bag that would be sufficient to–

Well, that is really your position, isn’t it?

Mr. Andrew L. Frey:

–Well, that is… that is our position, but in order for us to prevail in this case, it is not necessary for the Court to decide the exceptional case in which a paper bag were stapled, taped, marked

“Private contents, do not open. “

and so on.

We would still argue that the paper bag is such an unsuitable container to maintain substantial privacy interests that the costs of the warrant requirement are not justified, but that would present an exceptional case, and I think that what is before the Court today must be judged in terms of the general class of cases involving searches of containers that ordinarily are not used as a repository for highly private or personal effects.

Now, I wanted to make a couple of preliminary observations, and the first is that search and seizure issues generally have two facets.

The first is the substantive inquiry into the amount and quality of the justification the police must possess before they may conduct a search, and the second is the procedural inquiry into whether a warrant should be required as a precondition to the search.

Now, without denigrating the importance of the warrant in appropriate cases, I submit that the substantive requirement in cases like this, probable cause, is the far more important protection in safeguarding basic Fourth Amendment values.

Mr. Andrew L. Frey:

In this case, it is conceded that the substantive requirements were satisfied by the existence of probable cause, so the only question is whether the additional procedural prophylaxis of the warrant requirement is appropriate in this context.

Mr. Frey, could I ask you, just while you are… so I can keep it in mind while you go along, suppose what they were hunting for was, say, a waffle iron, a stolen waffle iron, or something else that couldn’t go in the paper bag.

You might have probable cause to search the car for the waffle iron, but if you got to the paper bag, you wouldn’t be searching it, would you?

Mr. Andrew L. Frey:

No, and I want to make–

All right.

That’s what I–

Mr. Andrew L. Frey:

–I want to make a point completely clear in this.

We are not saying that a paper bag, as modest as it is, has no privacy interests, or that police can look in paper bags any time they feel like it, randomly, or without justification.

–But you have to have probable cause to look for what can go in a paper bag.

Mr. Andrew L. Frey:

The scope of your search is determined by what you are looking for.

In this case it was reasonable to look for heroin in a paper bag.

Now, the second preliminary point I wanted to make is that the question here is not whether the lawfulness of the search will be subject to judicial review, but simply the timing of that review.

That is, will it occur by a magistrate before the search or will it occur in some other forum after the search, a suppression hearing or a Bivens action.

Also, without wanting to belabor the point, I do want to remind the Court that it is really beyond serious dispute that neither the language nor the history of the Fourth Amendment directly supports the imposition of a warrant requirement in a case like this.

The warrant requirement is rather a judicially created one designed to implement the reasonableness requirement of the first clause of the Fourth Amendment.

I say this not as a criticism of the judicial imposition of a warrant requirement, because I believe that the Court has correctly perceived that it is ordinarily unreasonable to permit certain kinds of searches to proceed solely on the basis of the judgment of a police officer.

What I hope to persuade the Court today is that any inquiry into the wisdom of ruling certain classes of searches unreasonable per se in the absence of a warrant depends on a consideration of the extent to which the warrant requirement serves the basic purposes of the Fourth Amendment in the particular context.

This requires weighing the benefits that may be derived from the warrant requirement against the costs that are associated with the procedure, and the analysis that we espouse for assessing the value of the warrant procedure is precisely that employed by the Court for determining the procedures required to satisfy due process in procedural due process cases.

I would like to quote briefly from the opinion of Mathews against Eldridge.

It is at Page 20 of our brief.

The Court said that you should consider,

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal or administrative burden that the additional or substitute procedural requirement would entail. “

So, let me turn first to a consideration of the benefits that might be realized from the warrant procedure as applied to containers such as Respondent’s paper bag or Mr. Robbins’ plastic wrapped parcel.

Now, the decisions of this Court have essentially identified three types of benefits associated with the warrant procedure.

One important benefit in some contexts is that the warrant limits the scope of the search by particularizing the area to be searched and the items to be seized.

In the case of container searches, this benefit is essentially absent, because the item has already been seized, the area of the search is quite clear, and in the case of a paper bag, there is no practical way to limit the scope of the search inside the paper bag.

Well, Mr. Frey, that does assume that you could hold the bag.

Mr. Andrew L. Frey:

Yes, it is a–

You can seize the bag.

Mr. Andrew L. Frey:

–You could not have a meaningful warrant requirement if you didn’t first allow a seizure of the item.

Mr. Andrew L. Frey:

I mean, the Court has recognized that a seizure is permitted on probable cause.

It is only the search that–

In what did we recognize that?

In an automobile search?

Mr. Andrew L. Frey:

–That was recognized in Chadwick, and in Sanders.

That we can… you can hold the… hold the item you want to search until you get the warrant?

Mr. Andrew L. Frey:

Yes.

I don’t think that that is seriously controverted.

Yes.

Mr. Frey, on the Sanders case, is it your position that we have to address the question of whether Sanders was retroactive in this case?

Mr. Andrew L. Frey:

No, we have not raised that issue.

That issue was in the case.

It was disposed of adversely to us by the court of appeals.

I believe the court of appeals’ decision was incorrect, but we have not presented the issue in our petition for certiorari, and it is not before the Court.

And yet last week the Solicitor General in another case was taking the position that we should address the retroactivity question.

Mr. Andrew L. Frey:

Well, I don’t denigrate the importance of the retroactivity question.

It is just that in selecting this… this case had another important issue.

We try generally to select the issues that are important and that it is useful for the Court to consider.

It is going to decide the retroactivity issue in the Johnson case.

Do you think that the Sanders case is applicable here–

Mr. Andrew L. Frey:

I don’t think the–

–and would have to be–

Mr. Andrew L. Frey:

–I don’t believe that Sanders governs this case.

–And why not?

Mr. Andrew L. Frey:

Because of the difference between luggage and insubstantial containers of the type we are arguing about here.

And do you take the position that we should deal then and adopt some rule based on the worthiness of the container?

Do you think that is desirable?

Mr. Andrew L. Frey:

Well, I wouldn’t use that particular rhetoric in describing it, but I do think that it is desirable, and I hope to show in my argument–

Is that more desirable than addressing ourselves to whether any article contained in an automobile when you have probable cause for the search can be searched?

Mr. Andrew L. Frey:

–Well, that… that would be an alternative line of analysis that three Justices have employed in dissent in line with Sanders.

Is that a better approach than to examine the worthiness of the container, in your opinion?

Mr. Andrew L. Frey:

Well, in my… as I analyze the case, I think it is logically prior to decide whether the container is a kind that is generally entitled to the warrant protection before deciding whether the fact that it is found in the course of an automobile search justifies a warrantless search, and I think the reason why I take that position is because in my view the outcome of the automobile search issue might very well depend on the outcome of the other issue.

If the Court’s conclusion were that only a small category of containers, to wit, luggage, attached cases, containers inevitably associated with an expectation of privacy, have the protection of the warrant clause if they are found on a sidewalk or a park bench or a restaurant table or some place like that, then that seems to me that it would affect the analysis of the automobile search issue, because it could be argued that those items have substantially greater privacy protection than the automobile itself, and there would… against that framework, there would be some logical basis for refusing to apply the automobile search exception.

Well, given the fact that you have an automobile search exception, and that you can reached closed containers even in a locked glove compartment of a car, is there a logical distinction then between that and a closed container in a trunk?

Mr. Andrew L. Frey:

No, but I take it the rule as to searching that closed container would be the same whether it was located in the glove compartment or the trunk.

I must say that… that Justices Blackmun and–

Do you think Belton allows currently that you could search the article in the locked glove compartment and–

Mr. Andrew L. Frey:

–Well, I view Belton as presenting a completely different issue, because the search there is not justified by probable cause.

That is not the substantive justification for the search, and therefore I don’t think that it necessarily sheds light on the appropriate rule when you are not dealing with a search incident but an investigative search which must be justified by some quantum of particular suspicion–

–Mr. Frey, wasn’t he under arrest and handcuffed before the bag was opened?

Mr. Andrew L. Frey:

–Well, he was placed under arrest, and I think–

And handcuffed.

Mr. Andrew L. Frey:

–Yes, but we are not arguing that this is–

Well, I haven’t finished my question.

Mr. Andrew L. Frey:

–Yes.

Couldn’t he just have taken him and the bag along?

Mr. Andrew L. Frey:

Absolutely.

And you wouldn’t have any Fourth Amendment problem, right?

Mr. Andrew L. Frey:

That’s correct.

Aren’t you really making a Fourth Amendment problem out of what is not a Fourth Amendment problem?

Mr. Andrew L. Frey:

I don’t… I don’t believe so.

I think you would have–

And you take him and you can go… when you book him, you can go in that bag, can’t you?

Mr. Andrew L. Frey:

–After we have a warrant, under the court of appeals–

Oh, no.

You arrest him.

Don’t you take along what he has with him?

Mr. Andrew L. Frey:

–Well, if you have–

Don’t you?

Mr. Andrew L. Frey:

–At least if you have probable cause to seize it, you do.

If you have probable cause to arrest, don’t you have probable cause to take with the arrested person whatever he has on him?

Mr. Andrew L. Frey:

Yes, but this was found in the locked trunk of an automobile–

Of his car.

Mr. Andrew L. Frey:

–But not within the–

Wouldn’t you normally take it along to inventory the car?

Mr. Andrew L. Frey:

–Well, that… that varies from place to place, and I don’t know–

Well, isn’t that the normal procedure?

Why did you have to open it there?

You had enough to lock him up.

Mr. Andrew L. Frey:

–Well I think there are good reasons for opening it there, but–

What are they?

Mr. Andrew L. Frey:

–All right.

I was going to get to this a little later, because of the way my analysis was structured, but I think even if you look at it in terms of the Fourth Amendment interests of the suspect, there are reasons for preferring an on the spot probable cause search to taking it and getting a warrant.

Well, there was nothing in there that would hurt him, that would hurt anybody.

Mr. Andrew L. Frey:

Excuse me?

There was no gun or knife or anything.

Mr. Andrew L. Frey:

No, no, we are not… we are not attempting to justify–

And it wasn’t then in the possession of the arrested person, was it?

Mr. Andrew L. Frey:

–But let me ask you… I don’t mean to ask you a question, but let my hypothesize that in this case the informant was mistaken, and that the bag in fact contained no heroin–

Or that you had the wrong car.

Mr. Andrew L. Frey:

–Or that we had the wrong car.

All he had to do was open up the bag and show you there was nothing in there.

Mr. Andrew L. Frey:

Well, this… this is what the court said in–

I don’t… I don’t presume that an average narc agent is interested in protecting the innocent.

Mr. Andrew L. Frey:

–Well, I am not sure how to respond to that point, but I–

Well, I mean, I don’t think that your argument that the government was… that is not the argument the government has.

The argument is the government wanted to find out if the man was violating the law.

Isn’t that what their agent was trying to find out?

Mr. Andrew L. Frey:

–Well, of course.

He wasn’t trying to find out whether he was innocent.

Mr. Andrew L. Frey:

The question before the Court is the appropriateness of having a prophylactic procedure of a warrant application before the officer can look into that paper bag and see whether the man was violating the law or not, and I would like to say–

But under mine he can look in there without a warrant.

Mr. Andrew L. Frey:

–Excuse me?

I thought that my hypothesis was that he could be arrested, he was arrested, he could be taken with the bag to the place where he was to be incarcerated, and they would have searched it, and searched him, legally, and there would be no Fourth Amendment problem.

Mr. Andrew L. Frey:

Well, there–

The Fourth Amendment problem came because you searched him before you booked him.

Mr. Andrew L. Frey:

–Well, I don’t… I don’t believe that is right.

If there were an inventory search procedure, there are two things.

One is, it is not clear that it would apply to containers found in an automobile.

That is a disputed and unsettled issue.

And the second thing is that it’s not clear that you couldn’t conduct the inventory on the spot.

We are not relying on an inventory rationale in this case.

The question is whether an investigative search can be undertaken on probable cause.

But I do want to make the point, you say he can just consent to their looking in the bag if he is innocent, and that is what the Court suggested in the footnote in Sanders, and it has been suggested elsewhere, but if you were the chief of police or the United States attorney, and you were instructing your agents on what to do in an important case when they had seized a container that they believed, let’s say, had 20 pounds of cocaine in it, whether or not to accept the consent, I think you would be most hesitant before telling them to accept a consent, because if it does have the cocaine in it, you can be sure that in 95 percent of those cases you are going to have a suppression hearing in which the defendant will be claiming that he didn’t consent, you will be taking a risk that the district court will agree with that finding.

Did you have a suppression hearing here?

Mr. Andrew L. Frey:

We sure did.

Well, what are you complaining about?

Mr. Andrew L. Frey:

I am complaining about the risk of losing the evidence, and I am saying that I–

Well, who’s got the evidence?

Mr. Andrew L. Frey:

–I don’t mean losing it physically, I mean losing its use in court as evidence in a criminal case.

Is there a difference, Mr. Frey, in the application of this problem where something is seized in a large city like Washington, where you’ve got dozens of judges around with magisterial powers, and seizing it in… seizing exactly the same kind of material and making an arrest on probable cause out in Wyoming or Utah or Colorado?

Mr. Andrew L. Frey:

Well, there is a difference, but I… I have to say that in applying the cost benefit analysis, the difference in cost between two to four hours of a couple of officers being off the street getting a warrant and possibly eight hours or longer is not all that great.

In my view, in either case the costs of a warrant requirement are substantial.

Now, if you are searching a house, I don’t question for a moment that they are justified, but we are talking about searching a paper bag, and so while I agree with you that there is some difference, I don’t think that difference is material to the proper disposition of this case.

I take it that the basic point you are making is that if you can search the interior of the car, taking everything, anything and everything you find in what we call the interior of the car, there isn’t a logical reason why that should not be extended and enlarged.

Mr. Andrew L. Frey:

That is an important… that is part of our argument, or in a sense the lynchpin of our argument in terms of looking at precedent, which is that the Court has… in the past, the results that the Court has reached have been dependent on the Court’s evaluation of the magnitude of the expectation of privacy in the area that is to be searched.

In automobiles, as the Court explained in Chadwick, in contrasting automobiles to luggage, the privacy interest is significantly less in automobiles than in luggage, and that is why the Court held that a warrant is required for luggage and not for automobiles.

So, it does seem to me that the question before you can impose a warrant requirement on containers is whether there is any substantial basis for saying that a container is more private than the locked glove compartment of a car or the trunk of a car.

Are there problems being created in the application of the rules that we are discussing here by the change in the structure of automobiles, that is, the hatchbacks, the newer types of cars where they do not have a trunk which is distinct from the rest of the interior?

Mr. Andrew L. Frey:

Well, I think that would be relevant in search incident cases, but I don’t think it is relevant in investigative search cases, because the Court’s rules clearly allow a full search of all portions of the car, so whether you had a hatchback, a station wagon, or a conventional sedan with a closed trunk, the rule still is that you don’t need a warrant.

Well, under Belton… under Belton, what is the limit of the search?

Mr. Andrew L. Frey:

In Belton, the limit of the search is the area within the reach of the arrested individual at the time of his arrest, which was the passenger compartment of the car.

That means the interior of the car as distinguished from the locked trunk that is in–

Mr. Andrew L. Frey:

Yes.

–the rear of the back seat.

Mr. Andrew L. Frey:

I agree.

But I–

Is that a problem, in terms of definitions, the change in structure of cars?

If not in this case, it conceivably would be in some other cases, would it not?

Mr. Andrew L. Frey:

–Well, I am not sure that I can think of a case.

As I say, I think it is relevant in terms of the permissible scope of search incident to arrest, but if we are talking about an investigative search on probable cause, and whether a warrant is required, after all, for a search incident you don’t need probable cause.

That is one of the reasons the warrant requirement has nothing to do with search incident to arrest.

In any event, let me get back briefly to the benefits of the warrant procedure, because I think it is very important for the Court to have in mind the limited extent to which those benefits apply to searches of insubstantial or low privacy containers.

In addition to the particularly benefit there is also the notice benefit.

That is, the warrant provides notice to the person whose property is being searched that the search has been judicially authorized.

Again, in the case of the container search, the search on the spot is the only one that the defendant is likely to observe.

Otherwise, he is going to be locked away in a cell, and the search won’t even take place in his presence, and the notice function is a pretty insubstantial function in the context of container searches.

Now, there is a third function, and it is, I think, the most important one, and the only one that is relevant here, and that is that when the warrant procedure is working properly, it will guard against unjustified searches by overzealous police officers who mistakenly believe they possess probable cause.

The value of this benefit, I submit, is inescapably tied to the privacy interest that is generally associated with the thing or the place to be searched.

In those areas where society attaches high privacy value, the home or office, mail, telephone communications, the damage to Fourth Amendment interests caused by an unjustified search are high, and accordingly the prophylaxis of the warrant procedure, if it succeeds in preventing even a few unjustified searches, is well worth its cost.

But, I repeat, the value of the warrant requirement here is solely a product of the costs associated with the unjustified search which is going to be prevented.

If the search is of an area that is unlikely to contain anything very private, the costs of a mistake in the search are dramatically reduced.

For example, in Robbins, if the officer had been mistaken in believing that the parcel contained marijuana bricks, and instead had found that it contained highway flares, as one judge suggested it looked like, the costs of the officer seeing the highway flares in terms of an invasion on Robbins’ personal privacy would have been relatively slight.

This is also true in cases involving, for instance, burlap bags full of marijuana, which might turn out to contain straw if the officer is mistaken, and generally in cases of containers, grocery bags and other things that don’t ordinarily contain highly private items.

Now, against these very limited benefits when we are talking about container searches, we have to weigh the costs in terms of two respects.

One is the governmental resources consumed in the warrant procedure, and again, I… it is very easy to pooh-pooh, as the ACLU has done in its amicus brief, the costs of the warrant procedure as though they were a moderate convenience, like having a remote control to turn on and off your television set, but it is hardly a matter of that nature.

It is a matter of taking working law enforcement officers away from their other duties for a substantial period of time while they get a warrant, and I think it is the duty of this Court not to require those kinds of procedures unless it is satisfied that some substantial protection of Fourth Amendment interests is going to be derived from it.

The second is the point that I have already discussed with Justice Marshall, which is even the interests of the innocent suspect are not well guarded by this rule, because that individual may be subject to a custodial arrest lasting some hours before the magistrate decides there is not probable cause and orders him released, and I suspect that, to use the greater intrusion, lesser intrusion analogy, most people would vastly prefer an immediate search if you are dealing with a low privacy container than they would the alternative of arrest, seizure, warrant procedure, and so on.

Now, in view of the time, I think I will sit down now if there are no further questions and reserve the rest of my time for rebuttal.

Warren E. Burger:

Mr. Garber.

William J. Garber:

Mr. Chief Justice, and may it please the Court, on behalf of the Respondent, our position is succinctly that the circuit court was correct in invalidating the search in this case, and that the circuit court’s opinion has been reinforced by this Court’s judgment in Robbins versus California.

Suppose, Mr. Garber, that when they actually opened and tested this container, this brown paper bag, and found that it was just powdered sugar and nothing else, or some other innocuous subject, or substance, how much damage has the… have the privacy interests of the person been impinged?

How serious would that be, if they have made a mistake?

William J. Garber:

I would answer it this way, Mr. Chief Justice.

If that had occurred, and it didn’t occur in this case, because actually the substance was not even field tested until after Ross had been arrested, after the vehicle had been taken to the police headquarters, and after the police officer had opened the trunk, removed the… the items, and taken them to the mobile crime lab.

In the transcript at the trial of this case, the officer testified that it wasn’t until after he got to the mobile crime lab that the field test of one of the packages was actually conducted, but the point is that Ross in this case was initially arrested on a weapons charge.

After the car was stopped, and the interior of the vehicle was seized, a gun was found in the glove compartment.

It was at that point that he was placed under arrest, and he was handcuffed, and he was securely in police custody.

So, in this particular case, even if the substance had turned out to be an innocuous substance, Ross still would have been in custody by virtue of the finding of the weapon in the glove compartment.

At what point do you say the Fourth Amendment was violated, when they opened the trunk or when they opened the bag?

William J. Garber:

I would contend, Your Honor, that the Fourth Amendment was violated when they opened the bag, if we are going to consistently apply Chadwick and Sanders and Ross.

The reason is this.

When the police officers had received the information from the informant, the only thing they knew was that Ross had been engaged allegedly in the sale of narcotics from the trunk of his car.

The police had no information that a particular container such as a suitcase, or a briefcase, or a paper bag, was involved.

So, when they proceeded to the location of the arrest, and stopped the car, they… they intended to search that vehicle to see if it had contraband.

Now, after Ross had been removed and the… and the gun was found and he was handcuffed, the police opened the trunk of the vehicle.

They didn’t see contraband in plain view.

They had to open a container in order to determine whether or not the fruits of the search were actually in the trunk of the car.

Let me go back to my question.

Was the Fourth Amendment violated in your view when they opened the trunk?

William J. Garber:

When they opened the trunk, not at that point, because we would have to concede, and of course the main thrust of our argument is that at that point there may have been exigent circumstances for conducting a search of the vehicle on the scene, but that once they had opened the trunk, and after Ross had been in custody, and they observed… they didn’t observe contraband in plain view, at that point the exigencies were gone.

They may have had a probable cause to believe that the contraband was contained either in the pouch or in the paper bag, but they wouldn’t have known that unless they actually conducted a search.

Mr. Garber, can I go back a second?

William J. Garber:

Yes.

What is it, again, in your view, that justified opening the trunk?

You said exigent circumstances?

William J. Garber:

Well, at that point they had, as the court found, probable cause to believe that Ross had violated the law and there was contraband in the car.

Now, that is enough in your view to open the trunk?

William J. Garber:

Under the… as I understand the cases that have been decided by this Court, yes, because they… and that was the… that goes as far back as Carroll.

Supposing there had been a blanket over everything in the trunk.

Would they have been authorized to pick up the top of the blanket and look underneath?

William J. Garber:

Now we get into what constitutes and what does not constitute a container.

The position of the Respondent and the position we have taken in the brief is this, that once the Respondent has been taken into custody, and once the movable object has been reduced to exclusive police custody, and once the police officers find that the fruits of their search certainly aren’t in plain view, then at that point the exigencies of the situation cease.

Didn’t that all happen before they opened the trunk?

William J. Garber:

Well, they were still looking for contraband.

They were still looking for contraband.

Well, they were still looking when they opened the paper bag, but I don’t understand, very frankly, why in… under your analysis it is all right to open the trunk, but it is not all right to probe around in the trunk and open bags and things.

William J. Garber:

Because, as we stated in our brief, and as we… as we attempt to argue here, the violation of the Fourth Amendment occurs at a point where the exigent circumstances cease, and the exigent circumstances ceased at the point where Ross was in custody, the vehicle was in custody, and the officers did not find the fruits of the contraband until they were able to open the container on the scene.

Now, at that point, we submit that both the vehicle and its contents should have been removed, and a warrant applied for.

Now, the government takes the position that there is a cost involved in obtaining a warrant.

If we look at the facts of this case, the police officers removed the vehicle from the scene, took it to police headquarters.

The police officer testified that after he had arrived at the police headquarters, he went up, he went back, got two other police officers, they came down, they opened the trunk, they removed the pouch, and they removed the paper bag.

They were taken to mobile crime for an analysis.

He said he was there for two hours.

He testified that after he completed all of the forms and the paper work in this case, it was in the early morning hours of the following day that he left.

So in this… under the facts of this case, we have the police officer engaged in a five-hour period of processing this particular arrest.

There was ample opportunity to prepare a warrant application in this case.

Mr. Garber, would you agree that had the paper bag been located on the back seat of the vehicle, the police could have opened it and examined the contents?

William J. Garber:

Under Belton… under Belton, this Court has held that the interior of the vehicle could be searched–

Right, and it… okay.

William J. Garber:

–and that would be a search incident to an arrest.

And if it had been in the locked glove compartment, the police could have opened the bag and examined the content.

William J. Garber:

Correct.

All right, and just because there is some little partition between the back seat and the trunk, there should be a different rule.

Is that it?

William J. Garber:

Yes, because the area of the trunk is an area which was removed from the area which is considered incident to an arrest.

Now, of course, I am not here to reargue Belton, because we… the facts in Belton and the facts in this case are different, but I do say that there is a distinction between the interior of the vehicle and the trunk of the vehicle as far as police officers being permitted to invade that area once an arrest has taken place, and there is no danger that evidence is going to be destroyed, or that the arrested person can grab a weapon.

But as the Chief Justice has pointed out in some of his questions, with today’s motor vehicle design, there isn’t much of a difference in many instances, is there?

William J. Garber:

Well, there may not be, but Robbins, we must remember, was a station wagon, where the tailgate was lifted, and under the tailgate was a luggage compartment, and–

Do you rely on Robbins, Mr. Garber?

William J. Garber:

–Oh, yes.

I think that Robbins–

Do you think this judgment can be reversed without overruling Robbins?

William J. Garber:

–Oh, I think that if this judgment is reversed, it would certainly be inconsistent with Robbins, because–

Well, is you answer to me yes?

William J. Garber:

–The answer is yes.

We would have to overrule Robbins?

William J. Garber:

I would think the Court would have to, for this reason, that in the Robbins case, as in this case, there was an arrest after the police officers had probable cause to believe that contraband was contained in the car.

In Robbins, that probable cause didn’t arise until after the officer smelled the odor of marijuana emanating from the passenger compartment, and it was at that point that a search of the car was conducted.

Now, in this particular case, the only difference between Robbins and Ross is that the police acted on the basis of an informant’s tip, but Robbins started out as an automobile search, and Ross was an automobile search, but the point of departure came where the police in Robbins seized the plastic bag, and the police in Ross seized a paper bag.

I don’t think we have to get into a worthy or an unworthy container rule, because if we apply the exigent circumstance doctrine in all of these cases, then all we have to determine is at what point the exigencies ceased, and at the point where the exigencies ceased, then the warrant requirement comes into play.

Well, do you regard the so-called automobile exception, whatever it may consist of, as simply a branch of exigent circumstances?

William J. Garber:

The automobile exception has been held by this Court to be an exception, to be an exception, starting with Carroll.

But if we look at Carroll, in Carroll there was no… there was no cause to arrest the occupants in that case, because the offense, transporting liquor, was a misdemeanor, and it had to have been committed within the presence of the officers.

So, the exigencies were in searching the vehicle to see whether or not contraband was in the car.

In this particular case, Ross had been arrested.

He wasn’t going anywhere.

The vehicle had been released into police custody, and even Carroll states that if there… if it is practical to get a warrant, even in the case of an automobile, one must be obtained.

Well, that isn’t the rule that we follow, is it?

William J. Garber:

Not since Chambers, and I think one of the problems in this whole area is Chambers, when Chambers permits a search of a vehicle to take place at a location other than where the initial arrest occurred, and perhaps it is Chambers, as we have indicated, that really needs to be reconsidered.

Well, maybe it is Robbins.

William J. Garber:

Well, of course, I am aware of Your Honors’ position in these matters.

The Court can really take two roads.

The Court–

What you mean is, you are aware of the majority’s positions, isn’t it?

William J. Garber:

–Yes.

Well–

I would have thought, Mr. Garber, that your position would be that as soon as there was any effort to open the trunk, as distinguished from the interior of the car, whatever the interior of the car really is, that that is when the Fourth Amendment violation began.

William J. Garber:

–But the intrusion went beyond that, Your Honor.

Well–

William J. Garber:

The intrusion went into the container itself.

–That might well be so, but the question is, when was the first instant when the Fourth Amendment was violated, in your view?

William J. Garber:

When the police opened the bag, because in Robbins, for example, the police opened the tailgate, and also lifted up the luggage–

And you equate that to opening the trunk?

William J. Garber:

–Oh, yes.

I would think… because we are talking about automobile design.

I don’t think these cases should turn on the design of a vehicle.

I don’t think that is the issue.

Nor should the case turn on the configuration or the worthiness of the particular container.

Well, you say the design is irrelevant.

You suggest that.

But then how do you… what are the limits on the interior as the Court applied it in the Belton case?

William J. Garber:

The limits of the interior would be that area which had been occupied by either the driver or the passenger, because it was in that area that weapons could be concealed and evidence could be hidden, so we are talking about the passenger compartment of the vehicle as opposed to the trunk or storage area, and again, we get into automobile design.

I don’t think design is relevant.

We are talking now about area within the arrestee’s control, and in Belton, of course, the decision was that the… actually the passenger area of the car was the area that could be permissibly… permissibly searched.

But the problem with the automobile exception as it has now evolved is the… well, it started out with an inherent mobility factor, and that… then it evolved into a diminished expectation of privacy, and then state and governmental regulation.

We submit that the inherently… inherent mobility factor is really the only true and genuine factor that should play a part in these cases, because, let’s face it, an automobile is a very expensive piece of personal property.

Next to a house, it is the most expensive investment an individual can make, and to say that merely because you own a car, that once you get in that car your expectation of privacy diminishes, I don’t think that that is compatible with the real world as we know it.

The automobile today is much different than the automobile of 30, 40, 50 years ago.

Well, certainly your expectation of privacy when you are driving down a public street with no shades on the windows of present-day cars in not as great in a car as when you are sitting in your house.

William J. Garber:

That may be true.

People can look in the windows.

William J. Garber:

That’s true, but there are areas of that vehicle where that expectation of privacy can be manifested, and it is those areas that we are talking about.

In other words, if an individual places, say, a briefcase or a paper bag or some other container in the trunk of a vehicle, as opposed to the interior, I think that manifests an expectation of privacy.

Well, it is true also that if a person places an envelop in his inside pocket of his coat as he walks down the street, that manifests an expectation of privacy, and yet a search incident to arrest, you can search the entire person.

William J. Garber:

Yes, but this isn’t a search incident to an arrest case.

Well, but certainly the same general factors should govern.

William J. Garber:

Well, I don’t think so, because search incident to arrest is entirely different from the automobile search that we are talking about here.

When you have a search incident to an arrest, you are attempting either to seize evidence immediately associated with the person or means by which the individual can escape, and therefore this Court and other courts have permitted a search not only of the person, a full-blown search of the person, but also of the immediate area.

But in this particular case, in the Ross case, as in the Robbins case, this wasn’t a search incident to an arrest, because the arrest had been effected, and when… once again I stress this inherent mobility factor.

William J. Garber:

If… if this factor is applied in these types of cases, we don’t have to worry about paper bags and cardboard boxes and shaving kits.

We only have to look at whether or not the exigencies permitted the scope of the intrusion at the particular time, and if that is removed, then any search conducted without a warrant is… is unreasonable.

Now, I still don’t understand the government’s argument as to the costs involved in obtaining a warrant.

We are talking about, in this type of case, essentially a one or two-page affidavit, an affidavit that could have been prepared within the time period that the processing in this case occurred, an affidavit that could have been taken to the magistrate either that evening or the following day, or even telephoned in.

Is the magistrate housed in the same building?

William J. Garber:

The magistrates, of course, their offices were in the… in the courthouse, but they do… they are available at home, and I do know that, from talking to the magistrates, that one of the procedures is the ability to record the oral affidavit as it is given over the phone, and then to reduce that to writing later.

So, even assuming it is midnight or 2:00 o’clock in the morning, the magistrate on duty could take the oral affidavit, and could give the authorization to conduct the search under the amendment to the rule, and it is that technology which I think undercuts the government’s argument.

Do you think there is no difference between the practical problems, if you are talking about Washington, D. C., or out in the prairies and the mountains in the west and other parts of the country–

William J. Garber:

Oh, I think–

–where you might be 100 or 200 miles from the nearest magistrate?

William J. Garber:

–Oh, I think there is a difference, because assuming you have a single law enforcement officer who is covering 90 square miles of territory in a vehicle, and he encounters a situation such as Robbins, for example, and it is going to take maybe… maybe 45 minutes or an hour before he gets backup, the exigencies of that situation may permit a result which is different from this case.

That is why the exigent circumstances factor has a plasticity and a flexibility which allows it to be applied nationwide.

So, of course, problems of law enforcement are much different in sparsely populated areas than they are in large metropolitan areas.

In this case, we had three police officers on the scene.

They were there within ten minutes of the call.

They took the vehicle back to the police headquarters within… within minutes.

And to further undercut the government’s argument, the following day, as the record of this case will show, when the complaint was filed with the magistrate, that complaint contained a statement of facts, a probable cause statement of facts which was really tantamount to a warrant affidavit, so there was no reason in this case why a warrant could not have been obtained, any more than there was a reason in Robbins for not obtaining a warrant.

We submit that Robbins is good law, that the… that the plurality of opinion in the case is good because it… it upholds the… the philosophical and the considerations of the Fourth Amendment.

It places the… the judicial branch of the government before the executive, and of course the more you whittle away on the warrant requirements, the more danger you have of… of one branch actually encroaching on the powers of the other.

So, we submit that the warrant requirement has a real function, and that this business about the warrant in the case of a dwelling sets the perimeter of the search, that’s not the… that’s not the point.

The point is that it places a natural and detached magistrate between the citizen and the police officer.

And look at the savings.

If there had been an affidavit in support of a search warrant in this case, we probably wouldn’t be here, because the reviewing court could look at the face of the affidavit and determine whether or not the affidavit established probable cause.

I could recite that affidavit to this Court within five minutes, as to what was needed.

The affidavit in the first paragraph could have obtained the informant information which would have satisfied the Aguillar and Spinelli.

The observations of the police officer which corroborated the fact that the car was there and the defendant matched the description given by the informant would have been the second paragraph, and the third paragraph would have recited that after the defendant had been arrested, the police officers observed two containers in the trunk compartment of the car, and they had probable cause to believe that they contained narcotics.

These containers could have been seized.

The magistrate or the judge could have given his authorization, and they could have been opened, and instead of having a evidentiary hearing in which a police officer, counsel, and the court were involved, say, an hours of testimony… in this case there were 109 pages of transcript on this motion to suppress.

If there had been a warrant, the judge would have been able to pass upon the legality of the search by looking at the affidavit, unless you can show that the affidavit could be attacked, as in Franks versus Delaware, but you would have to prove at that point that the police officer deliberately lied.

When an arrest is made on the street on probable cause, and there is no dispute about the probable cause, what is the scope of the arrest which… the search which can be made incident to that arrest?

William J. Garber:

Well, certainly the… the individual can be searched.

How about his billfold.

They will take his billfold out, out of his pocket.

Can they look in the billfold?

William J. Garber:

Oh, I think they can under the… under the Robinson case–

Suppose… suppose he has got a bunch of letters in his pocket, in envelopes, and perhaps not in envelopes.

Can they look at all those things?

William J. Garber:

–As a search incident to an arrest, and as I understand this Court’s decision… the decisions on the matter, once a person is in custody, he is subject to a thorough search.

I think Robinson decided that for a traffic arrest.

Can they take his shoes off and see if there is anything in the way of either weapons or drugs concealed in the shoes?

William J. Garber:

Oh, I think they do.

I think they do.

But we are not dealing with a search–

There is a pretty big invasion of privacy there, isn’t there?

William J. Garber:

–There is an invasion of privacy, certainly, but it is one of the… it is one of the exceptions to the warrant requirement, and that is the search incident to arrest, and of course in Belton that certainly was really an extreme view.

As we see it, in Belton, to permit, as this Court did, this complete thorough search of the passenger interior of the vehicle went far beyond anything which… which Your Honor has suggested.

Do you think… do you think Robbins would… would say that you could search any kind of a container an arrestee has with him wherever he is arrested?

William J. Garber:

On his person?

Well, a suitcase.

He is carrying a suitcase with him when he is arrested.

Can the suitcase be searched on the spot incident to arrest?

William J. Garber:

All right.

I think it would depend on whether or not at that point the… the probable cause, like in Sanders and Chadwick, was directed more toward the–

Well, incident to arrest doesn’t depend on probable cause.

William J. Garber:

–If you are going to–

And Robbins didn’t go on probable cause.

It went on incident to arrest.

William J. Garber:

–That’s correct.

Now, suppose instead of being arrested in your car and where you had a suitcase in the passenger compartment, you are arrested on the street carrying a suitcase.

William J. Garber:

If you… if you apply Belton, I would think that this Court would hold that–

Well, I know.

I am just asking you, what do you think the state of the law is now, after Belton and Robbins, in my example.

You are arrested on the street with a… carrying a locked suitcase.

Can the suitcase be searched on the spot incident to the arrest?

William J. Garber:

–I would think under… under the rationale of Belton that it would be, because it is a search incident to an arrest.

Yes, and what do you think the state of the law is if you… whether or not you can search it on the spot, you take the arrestee to the police station, and you are going to incarcerate him?

What do you do with the trunk… What do you do with his locked suitcase?

William J. Garber:

Under those circumstances, the exigencies have passed, because he has been taken into custody.

He has been separated from his suitcase.

So if you want to look in the suitcase, you have to get a warrant, in your–

William J. Garber:

You have to get a warrant.

–You cannot inventory it.

William J. Garber:

If you suspect that it contains fruits of crime–

No, you just… you are just going to lock him up and keep his suitcase.

You are going to put the suitcase in the property room.

William J. Garber:

–I would think you would have to have a warrant under those circumstances.

Even to inventory it?

William J. Garber:

Oh, certainly.

I don’t think–

Do you think–

William J. Garber:

–I don’t think–

–Do you think that is… do you think that is what the law is now?

William J. Garber:

–I don’t think it would be permissible to inventory the suitcase under those circumstances, no.

Do you think that is what the law is now?

William J. Garber:

It is my feeling it is, yes.

Yes.

William J. Garber:

But as I say, if we get back to the exigent circumstances as being the only… the only exception in this particular area, I think it is going to clear away a lot of the uncertainty that exists in this whole field.

Well, when would there be exigent circumstances in your submission, in a case like this?

William J. Garber:

All right, the police… the police have–

If you are going to arrest a man, you are going to arrest the man, you can always–

William J. Garber:

–Right.

–When… why would you ever be permitted to look into that paper bag, or in–

William J. Garber:

If the person, say, was carrying the paper bag and was lawfully arrested, as in Belton, if the paper bag were inside the… inside the passenger compartment–

–But if it is in… but there would never be exigent circumstances if you find it in the trunk?

Is that it?

William J. Garber:

–Not under the… not under these circumstances, no, because once–

Well, would there ever… can you imagine any?

William J. Garber:

–Yes, I could imagine them in the case of… in the case of Carroll, and those types of cases, where the police officers at the… at that point could not have detained the vehicle.

The vehicle could have been taken away.

In the case where they would have no cause to arrest the occupants.

Oh, but they could take the bag.

They could take the bag.

They just couldn’t look in it.

William J. Garber:

That’s correct.

Well, would there ever be exigent circumstances where you could look in the bag?

William J. Garber:

If it’s a search incident to an arrest.

But not otherwise?

William J. Garber:

Not otherwise.

That would be our… That is our position, and that is the position that we have advocated.

So your nationwide… your nationwide exigent circumstances rule is a rule that says don’t look in paper bags without a warrant.

William J. Garber:

No, it says don’t look in those articles or containers which have been immobilized, which are in the custody of the police, where there is no danger of these articles being lost or destroyed, and there is ample opportunity to secure judicial approval.

At that point, you need the warrant, because the exigencies no longer exist.

Would you apply that if a bag like the one your friend has presented, in being taken by the officer, he concludes that there is a pistol in there, he can feel it just by taking the bag, its weight and its configuration?

Can he open the bag and take the pistol out?

William J. Garber:

Well–

Or, since, as you suggest, he has it securely in his possession, he must take it down to the courthouse and get a magistrate or someone to issue a warrant?

William J. Garber:

–Well, then we are getting into the area as to whether or not the outward configuration of the item itself reveals its contents.

We don’t have that in this case.

Well, the outward configuration doesn’t reveal the content here until the policeman–

William J. Garber:

Well, he seized it.

–feels it with his hands.

William J. Garber:

He seized it, and at that point, if he seizes it and he realizes that it is a weapon, he realizes that it is a weapon, I think we have a different situation, because the… the configuration of the–

But the weapon can’t… be used against him if he has got it in his possession and hands it to one of his fellow officers.

William J. Garber:

–No, but by the same token–

Whatever is in the bag, he isn’t going to hand it back to the arrested person, is he?

William J. Garber:

–Oh, certainly not.

Certainly not.

But–

So on your theory, he doesn’t need to open it to be sure that it is a gun, because he can wait until he gets downtown and gets a warrant.

William J. Garber:

–Well, that is one… that is one answer, sir.

Well, which… which can he do?

William J. Garber:

Well–

Must he have a warrant before he opens the bag to see if it is really a gun instead of a monkey wrench?

William J. Garber:

–Well, if he is an experienced police officer, and he can ascertain by the weight and the feel of the bag that there is a weapon in there–

Or a monkey wrench?

William J. Garber:

–If he is in doubt, then I think he needs a warrant.

As I say, all of these… we are dealing here with relative factors, where the facts in each case is different, but arguing the facts of this particular case, I don’t see any distinction between this case and Robinson at all, and in Robbins, where the tailgate was opened and the luggage compartment was opened, all of that was sanctioned by the Court.

It was only when they opened the container itself that the Court felt they needed a warrant.

In this case, when they opened the paper bag, that was the point when–

Warren E. Burger:

Your time has expired now.

William J. Garber:

–Thank you.

Warren E. Burger:

Mr. Frey.

Mr. Andrew L. Frey:

Justice Stevens asked my colleague about lifting up a blanket that might be covering some items in the back of the car, and I think this touches upon the point which, as far as I am aware, is the only substantive argument of policy advanced for requiring warrants for searching insubstantial containers, and that is the bright line test, argument.

Now, we submit that the bright line argument that if you require a warrant for all containers officers will know what they have to do is faulty for a number of reasons.

The first reason is that your power is only to prohibit unreasonable searches and seizures under the Fourth Amendment, and there is a limit to the extent to which you can characterize reasonable searches as unreasonable for purposes of applying a bright line test.

But in any event, it is illusory to suppose that you will have a bright line test by the all container rule suggested in the Robbins plurality, and in the opinion of the court of appeals below, since there is enormous room for confusion, as your question pointed out, over what constitutes a container.

So you want us to overrule Robbins?

Mr. Andrew L. Frey:

Well, that is certainly one of the things that we would like you to do, and I believe that is open, and I do disagree, the government does disagree with the views expressed in the plurality opinion in Robbins.

We do agree with Justice Powell’s analytical framework, although not with his actual application of his analysis to the facts of Robbins.

Mr. Frey, may I ask this question about your bright line point insofar as it is relevant to a choice between the two submissions that the government makes?

One is that there are two kinds of containers, private and non-private, and your second submission is that once you can get into the car, you can search everything within the car that might contain the contraband for which you are searching.

Which of the two submissions would be better from a law enforcement standpoint in terms of simplicity of the rule?

Mr. Andrew L. Frey:

That… that was the point that I was coming to.

Our position is, of course, that if you do need a bright line, then in the context of an automobile it is unquestionable that the bright line is… is supplied by the rule that you may search containers within an automobile instead of trying to decide whether something is a container or is not.

As we pointed out in our brief, there is a First Circuit case that held a rolled up raincoat from which a walkie-talkie fell out when it was unrolled was a container.

Pockets of clothing, pillow cases stuffed with stolen goods, shopping bags open at the top but not revealing to plain view all of their contents.

All you are going to do is shift the area of uncertainty.

You are not going to relieve any uncertainty, and in fact, the post-Chadwick experience in dealing with the expectation of privacy analysis has shown very little confusion on the part of the courts between discerning what kinds of containers have high privacy attributes and require the additional prophylaxis of a warrant requirement to protect privacy interests and what kinds of containers don’t.

Now, I wanted to make a point briefly about telephonic warrants, because that was raised.

Telephonic warrants are to be used only in extraordinary circumstances.

The policy of the Department of Justice and I think the policy under the rule is that it is only to be used in cases where there is something on the verge of exigent circumstances.

It is normally designed, in fact, for the Wyoming kind of case, where the magistrate may be several hundred miles away.

You are still required to write out in full your warrant application, and then read it over the phone for the magistrate.

The time savings from a telephonic warrant which, as I say, would never be used in a case like this, are in fact very slight.

Now, I think that my colleague has been put in a position of essentially arguing for overruling the automobile search exception, because I think he implicitly acknowledges that it makes no sense to say that automobiles can be searched as a matter of expectation of privacy analysis without a warrant, but containers cannot be searched, and I think it is quite clear from the recent decisions of this Court, and Chadwick says so explicitly, that the automobile search exception is not based on exigency that occurs at the time the item is searched.

Are you suggesting that there is no greater invasion of legitimate privacy to go into the trunk and open everything in the trunk than to go into the interior of the car, however that is defined, and open everything in the interior of the car?

No difference in privacy–

Mr. Andrew L. Frey:

No, I think there may be some difference, but I think it is clearly settled that whatever that difference is, it is not dispositive of the right of the officers to make a warrantless probable cause search of the trunk.

I think there is… I mean, I think a glove compartment is probably a relatively private area compared to many kinds of containers that may be searched which may be governed by the decision in this case.

–May I ask you another question, Mr. Frey?

You don’t contend there is no privacy interest in a paper bag, do you?

Mr. Andrew L. Frey:

That’s correct.

In other words, say you had an airport case, and you had enough of a suspicion to stop a person and ask him a question or two.

It wouldn’t follow that you could say, open up your paper bag and let me look in it, would it?

Mr. Andrew L. Frey:

It would not follow, no.

Yes, because there is some privacy even in the paper bag.

Mr. Andrew L. Frey:

We are not saying that the police could go to some location where there happened to be a number of paper bags in the luggage room and start just looking through them.

That is not the point.

The point is that the substantive requirement of focused reasonable suspicion in these cases amounting to probable cause to believe that there is evidence of a crime is the critical protection of the privacy interests that the Fourth Amendment supplies, and in this context it is an ample protection, and the protection of the warrant clause is very, very slight in this context.

Mr. Frey, if… you say then that the… that you should get a different result where the container is in a car than if you find it somewhere else, say in a… say you know a person has checked a container in a checkroom, and you have probable cause to believe it contains contraband.

Mr. Andrew L. Frey:

No, our… our principal submission is that the result should be the same, that probable cause suffices to justify searching–

Whether it is found in a car or wherever it is found?

Mr. Andrew L. Frey:

–Whether it is found in a car or wherever it is found.

And the theory is just the… is this lowered expectation of privacy?

Mr. Andrew L. Frey:

Well, I wouldn’t say just the lower expectation of privacy.

I know.

Yes.

Mr. Andrew L. Frey:

That is the lifeblood of the warrant requirement in the first place.

Do you now draw the… say that the paper bag is in the checkroom along with a locked suitcase, and you have probable cause to search them both.

You would still have a different rule for–

Mr. Andrew L. Frey:

Absolutely, because this Court has recognized that the suitcase is inevitably associated with expectation of privacy, that its traditional–

–You accept those… you accept those holdings as right, or are you just accepting them–

Mr. Andrew L. Frey:

–Well, we haven’t been invited to overrule them, but I accept… The analysis that underlies those holdings seems to be legitimate, although one might be–

–What did we invite… What did we invite the parties to address in this case?

Mr. Andrew L. Frey:

–Whether Robbins should be reconsidered.

Which would… which would… What do you think that question involves?

Mr. Andrew L. Frey:

I think that question involves… I think there is a difference between a paper bag and a wrapped and sealed container, and I think that difference was dispositive, at least to Justice Powell’s vote in Robbins.

We are hoping that–

So you don’t think if we overturn Robbins we are overturning the rule that you can’t search a locked suitcase in the back end of a trunk?

Mr. Andrew L. Frey:

–Not at all.

Not at all.

But–

Maybe we posed the wrong question.

Mr. Andrew L. Frey:

–Well, we would… I would be prepared to argue if the Court wanted to reconsider Chadwick and Sanders, but I don’t think… I want to stress that Chadwick and Sanders focused on the question of whether suitcases and luggage are the kinds of items that require the protection of the warrant procedure, it looked in that to the customary uses of the items, their structural integrity, and the value that society attached to them, and it made a conclusion which I think is the Court’s job to make, yea or nay, that these have sufficient privacy attributes that a warrant requirement was appropriate.

Just suppose for a moment… do you draw a line between a locked trunk and an open trunk, and an unlocked trunk?

Mr. Andrew L. Frey:

I do for purposes of search incident to arrest.

In this case you would?

Mr. Andrew L. Frey:

No, in this case we are not suggesting that a warrantless search of either would be appropriate.

But I thought you said you could search the bag but you couldn’t search the locked trunk.

My point was, could you search an unlocked trunk, if it was closed?

Mr. Andrew L. Frey:

Not under… not under Sanders, no.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.