Wyoming v. Houghton – Oral Argument – January 12, 1999

Media for Wyoming v. Houghton

Audio Transcription for Opinion Announcement – April 05, 1999 in Wyoming v. Houghton

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William H. Rehnquist:

We’ll hear argument next in No. 98-184, Wyoming v. Sandra Houghton.

Mr. Rehurek.

Am I pronouncing your name correctly?

Paul S. Rehurek:

Rehurek, Your Honor.

William H. Rehnquist:

Rehurek.

Very well.

Would you proceed?

Paul S. Rehurek:

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

The question presented in this case is whether the scope of a search under the automobile exception extends to the personal belongings of a passenger when police have developed probable cause to search a private vehicle generally, but have no probable cause specific to the passenger or her belongings.

Under United States v. Ross, a search of an automobile based on probable cause extends to every part of the vehicle and its contents that may conceal the object of the search.

The officer here had probable cause to search the entire vehicle and its contents because he had reason to believe that the vehicle was transporting contraband and that it could be concealed anywhere inside the vehicle.

Once probable cause is established to search the entire vehicle, that probable cause extends to every plausible repository of the object of the search.

David H. Souter:

Am I right that in… in Ross the reason that… the source, if you will, of the probable cause was… was information about… I guess it was the driver of the car, one person anyway?

Paul S. Rehurek:

That’s correct, Your Honor.

David H. Souter:

So, Ross did not have the issue in it that we have here.

Paul S. Rehurek:

That’s true, neither Ross nor Carroll nor Acevedo nor other cases from this Court on the automobile exception.

The precise question involved here, of course, involves the passenger’s personal belongings when there isn’t specific probable cause.

However, I feel that Ross still controls the outcome of this case because the rule announced in Ross covers this kind of situation and many, many other kinds of situations.

William H. Rehnquist:

Well, Ross was an effort to get… get over, in effect, Sanders and Chadwick and some of those cases that just parsed the thing down to a fare-thee-well, wasn’t it?

Paul S. Rehurek:

It absolutely was, Mr. Chief Justice, and it was also a way to allow officers to know what the extent of their legal authority was.

And in that regard, it was also a way to let citizens know what the extent of their rights were.

Ruth Bader Ginsburg:

If this passenger, when she was told to exit the vehicle by the police, clutched her bag with her, then is that the dividing line that… could the police, not having suspicion relating to her, but relating to the driver who had the syringe in his pocket… could the police say that was in the vehicle, therefore I can search it?

Paul S. Rehurek:

Justice Ginsburg, there’s two responses to that.

First, that item, the purse, is a plausible repository of the contraband that was being searched for here, and it was inside the place where the probable cause attached.

In view of that, I think yes, even if the passenger had picked up her purse and taken it outside with her, the officer would have been within his authority to have her put it back in the car or, alternatively, to tell her not to take… pick it up and take it out of the car–

Anthony M. Kennedy:

Could… could he then go on to search the person?

Paul S. Rehurek:

–No, Your Honor.

DiRe teaches us that a search of a person is going to require the individualized probable cause that respondent wants to see attached to the purse.

Anthony M. Kennedy:

If DiRe is a given, if it’s the law that you can’t search the person, then why is that we can search the purse?

Paul S. Rehurek:

Your Honor, I think there’s a dividing line here that… that’s probably based more on actual practice and common sense than anything else.

Paul S. Rehurek:

But I would argue that a line should be drawn at articles of clothing that are actually being worn by the person getting out of the car.

If there’s a search of an item of clothing, that amounts to a search of the person.

However, any other object that might be inside the car when probable cause is established, picked up and taken out of the car, even if it’s an item of clothing, ought to be subject to search by the officer because again it’s at the place when probable cause is established and it’s a plausible repository.

Sandra Day O’Connor:

Well, do you take the position that probable cause extends to every container in the car?

Paul S. Rehurek:

Only, Justice O’Connor, with one qualification, and that is that the container has to be capable of holding the object of the search.

This Court has given an example of illegal aliens in a van does not give authority to police to search their suitcase or a lawn mower in a briefcase type of affair where it’s just physically impossible or for other reasons it’s absolutely known that the object of the search won’t be there.

Sandra Day O’Connor:

How… how would your test extend in fixed… a fixed premises, a building, as opposed to a car?

Paul S. Rehurek:

I think the nature of a search of the person is going to be the same either–

Sandra Day O’Connor:

Not search of a person.

We’re talking about containers–

Paul S. Rehurek:

–Oh, I’m sorry, Your Honor.

Certainly there’s a large body of case law that says when a warrant issues to search a premises, that the… the… the officer may execute that warrant by going to every container on the premises that’s capable of holding the object of the search.

Sandra Day O’Connor:

–And if there is no warrant but there’s probable cause to believe contraband is present?

Paul S. Rehurek:

On a premises?

Sandra Day O’Connor:

Yes.

Paul S. Rehurek:

He must get a warrant.

Sandra Day O’Connor:

I’m having–

–And the automobile you say once there’s probable cause to believe contraband was present for the driver, that it extends… probable cause extends to allow search of any container that could contain it that’s in the car.

Paul S. Rehurek:

I would not personally characterize it that way, Justice O’Connor.

I think the officer always had probable cause to search the entire car in this particular situation.

It’s just that it was Mr. Young, the driver, that furnished that probable cause.

It didn’t… the probable cause didn’t exactly start there with Mr. Young and then emanate outwards through the rest of the car.

Justice Stevens?

John Paul Stevens:

Could I ask you this question?

Because as you pointed out earlier, this is the first time we’ve gotten into the passenger problem with the Ross/Acevedo line of cases.

And I was wondering what your view would be of this… this question.

Supposing the officer thought he had probable cause, but in fact the court would later on decide he didn’t.

He just… it was an illegal search of a car that was improperly stopped.

Would the passenger in that car have standing to challenge the seizure of something in the front seat.

Say a back-seat passenger.

John Paul Stevens:

Could… would the passenger have standing to… to challenge the search, do you think?

Paul S. Rehurek:

Well, that’s a Rakas sort of situation by and large, but if that passenger was not the owner of that property–

John Paul Stevens:

He’s not.

Paul S. Rehurek:

–Okay.

Rakas tells us that a passenger who is not the owner of the car has no legitimate expectation of privacy in places such as under the seat or in the glove box or, for this example, on the front seat either.

So, without that legitimate expectation of privacy and without knowing more about the situation, I would say probably not, he wouldn’t be able to challenge that.

John Paul Stevens:

So the… so the… the passenger would not have standing to challenge the search of the entire car, but the right to search the entire car would include a right to search and invade the passenger’s privacy interest in her own purse.

It seems kind of having it having heads I win, tails you lose.

Paul S. Rehurek:

Well, your hypothetical is premised on him actually doing something he had no legal authority to do.

John Paul Stevens:

Well, see, I’m trying to identify what the… how you… how you cabin the various interests in privacy which both determine whether there’s a violation on the one hand, and also where there’s standing on the other.

It seems to me somewhat inconsistent to say that the privacy interest is insufficient to justify standing and… but nevertheless can be… can be invaded just because you happen to be in the car.

That’s the question.

Paul S. Rehurek:

Well, the reason for the invasion, of course, is… and this won’t always be the case, but the reason for the invasion is that the officer had probable cause for the entire vehicle.

Antonin Scalia:

But Mr…. do I misunderstand you +/?

I… surely she would have basis for challenging the search of her purse–

Paul S. Rehurek:

Yes.

Antonin Scalia:

–if there were no probable cause for the whole car.

Isn’t that right?

Paul S. Rehurek:

Certainly.

Antonin Scalia:

So, to the extent she has a personal interest involved, she can challenge.

Paul S. Rehurek:

Certainly, certainly.

David H. Souter:

In trying to decide how broad… broadly Ross should be read, I’m thinking of… of a possible distinction, and I’d like you to comment on it.

One case in which probable cause would be established generally to search the car would be the case that… that Ross, read in… in its most narrow sense, exemplified.

The driver of the car is exhibiting a certain behavior which indicates that the driver of the car is a drug user and from that it follows to the requisite extent that there… there are probably drugs or paraphernalia in the car.

The second situation in which it would be fair to say that there was probable cause to search the car would be the situation in which a… a witness, whom we will assume to be credible and reliable, goes to the police officer and says, there are three people sitting over in that car and, you know, they’re… they’re shooting heroin or whatnot.

They’re having a high old time on… on drugs over there.

In the second situation, I would suppose there’s no question.

The… the probable cause relates to the car and to everybody in it, so that every container in the car, whether it belonged to a driver, passenger, or whatnot, would be subject to the… to the probable cause conclusion.

In the first instance, however, in which it is only the behavior of the driver and the driver alone which furnishes what we speak of as probable cause to search the car, that in fact is… is not so.

Why shouldn’t we, in effect, read Ross as… as consistent with that distinction and say that in a case in which probable cause relates to the car and everybody in it, every container, in effect, is… is… is open to search, but when probable cause depends upon the activity of only one person in the car, then although you can generally search the car, you cannot search containers which reasonably appear to belong to somebody else?

David H. Souter:

Why shouldn’t we draw that line?

Paul S. Rehurek:

Because, Justice Souter, you need to take the perspective of the officer involved, first of all.

He has established probable cause that contraband is to be found on the premises, whether it’s a car, residence, whatever.

He has established probable cause to believe there’s… there’s contraband on that premises.

What he doesn’t know is that… is where it is.

It can be in more than one place.

Just the fact that there are several people in a car and only one is actually observed using drugs doesn’t mean that the others aren’t involved.

David H. Souter:

Well, that’s right, but if that reasoning is going to be carried, I suppose, to its conclusion, then the officer ought to be able to search the persons of the passengers, which DiRe tells us he may not do.

Paul S. Rehurek:

But I think the Fourth Amendment draws a distinct line on search of the person, and DiRe–

David H. Souter:

Why?

I mean, the standard is probable cause whether you’re searching a person or searching a… a box.

Paul S. Rehurek:

–The standard isn’t just probable cause for the search of a person.

It’s probable cause particularized to that person.

Now, here Mr. Young, the driver of the car–

David H. Souter:

Well, are you saying that there need be no particularity requirement when you’re searching something other than a person?

Paul S. Rehurek:

–Yes.

What I’m saying–

David H. Souter:

What’s… what’s your authority for that?

Paul S. Rehurek:

–Well, I think Ross says that.

David H. Souter:

Well, but Ross… Ross was not… yes, but the question is should… should Ross be read to cover my second situation when, in fact, the facts in Ross go no further than the first situation?

Paul S. Rehurek:

It’s true the facts go no further than that, Justice Souter, but the rule announced in Ross–

David H. Souter:

Oh, broad language.

No question.

The… but the question… I mean, as I understand it, the question in this case is, is the language to be read as broadly as it was stated?

Is it to be read broadly enough to cover the second situation?

And if… if your answer is, that was the language and I’m going to go on the answer, then I think we still have a question of… of principle to… to wrestle with, and that is whether we really ought to read the… whether we ought to accept the language as being as… as broad as it was.

Paul S. Rehurek:

–Your Honor, it’s not just the fact that the officer knows a particular individual in that car has drugs.

It’s… it’s that… that coupled with the fact that contraband could be concealed anywhere inside–

David H. Souter:

In the pocket.

That’s very true, but exactly.

David H. Souter:

It… it could be concealed in the pocket just as well as the purse, and if we accept that reasoning, I don’t know how DiRe is going to stand except we say, stare decisis, we won’t look back.

But as a matter of principle, I don’t see how DiRe can stand.

Paul S. Rehurek:

–Well, of course, DiRe really isn’t involved in this case, but–

David H. Souter:

Well, it will be if we accept your reasoning I think–

Paul S. Rehurek:

–Well–

David H. Souter:

–because there will be an implication, I think, that… that would… would tend to undercut it.

Paul S. Rehurek:

–Well, I’m not trying to say that the search of the person can occur without individualized probable cause, but I am saying that when a container is located in a place where there is generalized probable cause to search, then that container is subject to search unlike a person.

Ruth Bader Ginsburg:

One of the problems with the line you draw is… is that this particular item, a lady’s purse, contains things that many gentlemen carry in their… in their pockets.

So, that’s why I raise the… if the… if the lady’s purse, why not the gentleman’s pocket?

Is that a rational line to draw?

What you’re saying is the key is where might one find contraband.

Paul S. Rehurek:

I recognize that situation, Justice Ginsburg.

It seems to me the ultimate criteria, though, under any hypothetical or any scenario is going to have to be whether or not the search of the person occurred.

Antonin Scalia:

Are you sure that a search of a purse is not a search of a person?

Suppose a woman is walking down the street.

Is there a difference between the officer grabbing her purse?

He needs less… less probable cause to just grab her purse and look at it than he does to… to conduct a search of her pockets or a frisk search?

Paul S. Rehurek:

I think the search of a purse that’s being held by somebody is not the equivalent of a search of the purse in the way the search of perhaps the woman’s coat that is being worn at that time would be.

The purse can be picked up and put down.

It can be left.

It can be carried with.

It’s not an article of clothing being worn.

I would draw the line, Justice Scalia, at that point regarding the purse.

And again, of course, the officer… officer can’t just approach and decide to search the purse because it’s not a search of the person and he can get away with it.

He’ll need probable cause for that too.

Sandra Day O’Connor:

Well, what are the alternatives for the officer in a situation like this?

Could he order everyone out of the car and, by the way, leave your purse or any other article in the car?

Don’t take it with you.

Is that–

Paul S. Rehurek:

I believe he could–

Sandra Day O’Connor:

–authorized–

Paul S. Rehurek:

–I believe he could, Justice–

Sandra Day O’Connor:

–for law enforcement officers?

Paul S. Rehurek:

–I believe he could, Justice O’Connor.

Sandra Day O’Connor:

And then what would he have to do if we were not to adopt your view here and he wanted to search the purse and there was no particularized suspicion with regard to this woman’s purse?

Get a search warrant?

Paul S. Rehurek:

Well, the search warrant apparently wouldn’t cover it either because under Ross, the scope of the automobile search is going to be the same as the scope of the search pursuant to a warrant, and neither one would cover, if respondent’s rule was adopted.

However, in my view it certainly would have been covered by a warrant had a warrant issued, but not because the officer had particularized probable cause to the purse, but because the purse was located in a place where the officer did have probable cause to search and that there was a likelihood that the contraband could have been found anywhere.

David H. Souter:

I presume then the same reasoning would extend to a wallet in a man’s pocket.

And if… if the officer is entitled to… to make the order that… that you say he is in response to Justice O’Connor, I suppose the officer could say, everybody out of the car, leave your purses and wallets on the seat.

Paul S. Rehurek:

Your Honor, I would draw this rather thin but I think distinct line at that point and say pulling an item out of your pocket is going to be a functional equivalent of a search of the person.

Antonin Scalia:

If she had her purse in her pocket, it would be a different question.

Paul S. Rehurek:

I believe it would.

David H. Souter:

But not if she was just holding the handle of the purse.

Paul S. Rehurek:

That’s correct.

It’s a very thin line.

David H. Souter:

It is a little thin.

[Laughter]

Paul S. Rehurek:

If I may, I’d like to reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Rehurek.

Ms. McDowell, we’ll hear from you.

Barbara B. McDowell:

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

In United States v. Ross, the Court articulated a clear, logical, and easily applied rule that probable cause to search a car gives the police the authority to search any container in the car that might contain the object of the search.

The container should not be exempt from that rule simply because it’s owned by a passenger whom the police do not have probable cause to arrest.

In many such cases, like this one, a police officer still could reasonably conclude that the object of the search may be found in the passenger’s purse or other container.

Anthony M. Kennedy:

We’re probing why this rule doesn’t extend to the search of a passenger in the car.

It would seem to me almost easier for the driver to say, here, quick, take the drugs, to the passenger than to stop and put it in the passenger’s purse.

Why can’t we search the passenger too?

Let’s say DiRe is not on the books.

Certainly under your… the logic of your position, it would clearly extend to the passenger.

Barbara B. McDowell:

Certainly the logic of our position would tend to extend to a search of the passenger as well.

There might be–

Anthony M. Kennedy:

Is DiRe wrong then?

Barbara B. McDowell:

–Pardon me?

Anthony M. Kennedy:

Is DiRe wrong then?

Barbara B. McDowell:

We would conclude that the rationale of DiRe may be incorrect to the extent that it suggests that there’s no probable cause to believe that there’s contraband on the passenger.

However, there would be another rationale to preserve DiRe but to allow the search here, and that would be to recognize that a search of the person is more intrusive for Fourth Amendment purposes than a search merely of someone’s belongings.

David H. Souter:

But the standard to justify than search is the same whether we’re talking about a search of the person or… or a search of a receptacle.

I mean, it’s still the probable cause standard.

Barbara B. McDowell:

That’s correct, but the Fourth Amendment also incorporates the concept of what is a reasonable search and one might be able to say that what’s reasonable in the context of property is not reasonable in the context of a personal search.

David H. Souter:

So, probable cause… to search the person, you’re saying perhaps we would have to say there would be probable… required probable cause plus something more.

Barbara B. McDowell:

Perhaps one could say that there needs to be somewhat more individualized suspicion directed at the person in order to conduct a personal search.

Anthony M. Kennedy:

I’m not sure why that is.

I’d much prefer that a police officer search my pockets than my briefcase.

Maybe that’s just idiosyncratic with me, but I–

[Laughter]

Barbara B. McDowell:

Perhaps.

Also, we have raised the possibility that in many circumstances, a driver of the car who is clearly involved in illegal activity would have an opportunity to store contraband in an innocent’s passenger’s purse.

It seems somewhat less likely that a guilty party could reach into the pocket of a purely innocent party and… and, totally unawares, deposit contraband there.

It’s somewhat easier to conceive of that happening with respect to a purse or other container that’s not on the person.

Stephen G. Breyer:

What is the basic rule?

I find it hard to keep all these complicated rules in mind, so I think maybe the police may also find it difficult and others.

But… but suppose you have really probable cause, not some artificial rule, that you really have probable cause to think that there’s a pound of heroin in a car.

Let’s say the police saw the pound of heroin and they tested it.

Somebody put it in a car and there it was.

The car has been moving.

There’s been no chance.

They’ve been watching it the whole time.

There’s no chance it could have been disposed of.

Now, they stop the car.

Stephen G. Breyer:

They know it’s in the car.

It’s not on the driver.

There is one passenger.

Can you search the passenger, including his billfold?

Barbara B. McDowell:

No.

We would say that you cannot–

Stephen G. Breyer:

You cannot?

Barbara B. McDowell:

–search the person under DiRe.

Whether you can search the passenger’s belongings or not–

Stephen G. Breyer:

Even if you really have probable cause.

Barbara B. McDowell:

–Pardon me?

Stephen G. Breyer:

Even if you really have probable cause to believe that there is a pound of heroin in the passenger’s pocket because there’s nowhere else it could possibly be and you know it’s there.

Barbara B. McDowell:

Oh, if you believe–

Stephen G. Breyer:

Even under those circumstances, you cannot search the passenger?

That’s the law?

Barbara B. McDowell:

–I’m sorry.

I didn’t understand your question.

You believe that it’s in the passenger’s pocket?

Stephen G. Breyer:

Look, I’m saying you know for sure there’s heroin in the car.

You know it for sure.

You know for sure it’s not on the driver.

There’s only one place it could be: the passenger.

Can you search the passenger?

He’d have a bulge in his pocket.

He has a bulge.

Right.

Exactly.

He has a bulge and you sniff it.

It’s there.

[Laughter]

Barbara B. McDowell:

Yes.

All right?

In that circumstance, you would have individualized probable cause presumably.

Stephen G. Breyer:

I don’t know what this means, individualized.

I mean, you have probable cause to believe it’s in the car.

You can’t find it anywhere.

There’s only one place left: the passenger.

Can you search the passenger?

Barbara B. McDowell:

The model code of pre-arraignment procedure adopted by the American Law Institute would suggest that you can.

That code adopts the rule that once you have searched everywhere else in the car and you have reason to suspect that it may be on a passenger’s person–

John Paul Stevens:

In that hypothetical, you could arrest him.

Barbara B. McDowell:

–you can search them.

The model code recognizes that that position is somewhat inconsistent with DiRe, however.

David H. Souter:

Why is it inconsistent with DiRe?

I mean, in… in Justice Breyer’s example, at the point the police would conduct the search of the passenger’s pocket, all the… all the facts known to them establish the probability, in quite a literal sense, that the heroin is in the passenger’s pocket.

Why isn’t that a simple garden variety example of having probable cause that points directly to a given person and nothing more than that?

Barbara B. McDowell:

Well, there… there certainly is a lot of logic to that position.

There are not cases–

David H. Souter:

Which is good for starters.

I mean, why isn’t the–

[Laughter]

Why doesn’t the logic… why doesn’t logic win here?

Of course, the… the… the next question is what if… what if you just have probable cause to believe that there is… that there’s contraband in the car?

Yes.

Thank you.

You’re not certain there’s contraband in the car and you search everywhere else and… and you don’t find it.

And then there’s the passenger left.

Now, is probable cause plus probable cause enough?

That’s… that’s what’s confusing me, of course.

I didn’t know there’s more of a standard than probable cause.

David H. Souter:

Well, the thing that puzzles me, why don’t you just arrest him in that hypothetical?

You have probable cause to arrest if you’ve got probable cause to believe he’s got heroin in his pocket.

Barbara B. McDowell:

–They may not always be the same concept.

In this case that might be true and then you can conduct a… a search incident to arrest.

We’re not aware of circumstances where the automobile exception allowing a warrantless search of a car has been extended to persons in the car.

David H. Souter:

Yes, but you have an exigent circumstances exception, don’t you?

If you don’t… well, you can do one of two things I suppose, and… and either of two rules would cover it.

You can either arrest, as Justice Stevens says, in which case you can then conduct a search incident to an arrest, or if you don’t arrest, I suppose the exigent circumstances exception would apply.

I mean, you’re… you’re… one or the other is going to apply, isn’t it?

Barbara B. McDowell:

Probably so, yes, Your Honor, depending on the degree to which one has suspicion focused on the individual at the point that you conduct the arrest or the search.

Antonin Scalia:

Do we have to decide all this stuff today?

Barbara B. McDowell:

No, Your Honor.

The question here is a relatively simple one involving a… a purse that was left in the car when the passengers got out.

So, there are possibly difficult line-drawing problems involving searches of persons or purses attached to persons that would not need to be reached in this case.

Ruth Bader Ginsburg:

Well, would you say that… the same question I… I asked the first counsel.

If she left the car clutching the bag, would you treat that any differently than if it’s a container in the car?

Barbara B. McDowell:

No, we wouldn’t, just as when the police are executing a search of a residence, somebody couldn’t walk out with a box containing the contraband and be allowed to walk away free.

We would say that because the purse was in the car at the time that probable cause arose–

John Paul Stevens:

What is your answer to the warrant to search a house and a woman is in the house with her purse.

She doesn’t live there.

She’s just a guest.

Can you search her purse then?

Barbara B. McDowell:

–Yes.

John Paul Stevens:

You can.

Barbara B. McDowell:

Yes.

John Paul Stevens:

Has any court held that?

Barbara B. McDowell:

Yes, the D.C. Circuit, among others, Pennsylvania, Michigan, and Wisconsin Supreme Courts have reasonably–

John Paul Stevens:

Are there any contrary holdings?

Barbara B. McDowell:

–Other courts have adopted a somewhat different standard that looks at the relationship between the owner of the purse and the residence.

They have said that a mere guest or passer-by’s objects cannot be searched, but they have said somebody in the nature of an overnight guest, somebody who is found there late at night, a business associate, a brother-in-law, yes.

John Paul Stevens:

And did they more or less correlate it to the kind of person who would have standing to object to the… the search of the whole house, the overnight guest on the one hand and a transient on the other?

Barbara B. McDowell:

No, that distinction hasn’t been drawn.

So, conceivably a person who would not have standing to challenge the search of the whole house could nonetheless have her own property searched.

Obviously, she would have standing with respect to her own purse.

We further suggest that the test that was suggested by the Wyoming Supreme Court would be very difficult for the police to apply in the often difficult, even dangerous conditions of a traffic stop.

It would require many factual inquiries that might be exceedingly unworkable to conduct.

In addition, that test provides no really principled protection of a passenger’s privacy.

Ruth Bader Ginsburg:

Why is it so hard to apply?

Because, at least as I read the decision, it says when they find out, they say, is this your purse?

She says, yes.

She’s a passenger they stopped.

I don’t see why it’s hard to apply.

Barbara B. McDowell:

Well, for one thing, Justice Ginsburg, the police shouldn’t have to accept a person’s word that a particular purse is hers.

A person who would want to conceal–

Ruth Bader Ginsburg:

Well, when they… let’s… I don’t… the… as I understood the Wyoming Supreme Court, they said they… the police found what was it?

Her driver’s license.

So, they know that it’s her purse.

So, if… if that’s the line, they know that it belongs to the passenger, that’s not a hard line to administer.

There may be other reasons to reject it.

Barbara B. McDowell:

–Could I answer the question, Your Honor?

There are additional inquiries that would have to be conducted, inquiries as to exactly how much particularized suspicion there is as to the passenger, questions about whether an opportunity existed to hide contraband in the passenger’s purse immediately before the stop, which the Wyoming Supreme Court would allow.

William H. Rehnquist:

Thank you, Ms. McDowell.

Ms. Domonkos.

Donna D. Domonkos:

Mr. Chief Justice, may it please the Court:

Wherever a man may be, he is entitled to know he will be free from unreasonable searches and seizures.

That is the language from Katz v. the United States where this Court said the Fourth Amendment protects people not places.

This Court has also said that it is the owner of the container who is protected under the Fourth Amendment.

The Wyoming Supreme Court recognized these rulings when it adopted the notice test.

In the first instance of the notice test, if the officer knows or reasonably knows that the container to be searched does not belong to the person whom they have probable cause to search, they cannot search it.

William H. Rehnquist:

Well, Ms. Domonkos, the Wyoming Supreme Court certainly did not follow the language in Ross here, did it, in our Ross decision?

Donna D. Domonkos:

It did follow the language in Ross.

William H. Rehnquist:

I… I thought Ross said probable cause extends to any container in the car.

Donna D. Domonkos:

The… the scope of the Ross holding was that–

William H. Rehnquist:

I didn’t say–

Donna D. Domonkos:

–The scope of the search.

William H. Rehnquist:

–Yes, go… go ahead.

Go ahead.

Donna D. Domonkos:

The scope of the search is that where… wherever the officer has probable cause to believe that contraband may be concealed.

And there was no reason to believe the officer in this case had probable cause–

William H. Rehnquist:

Well, but didn’t it say… it extended to any container in the automobile?

Donna D. Domonkos:

–Yes.

Ross introduced a bright line rule.

William H. Rehnquist:

And the reason it introduced a bright line rule was because lawyers and courts have been hopelessly confused by some of our earlier decisions which parsed this thing to a fare-thee-well: Chadwick, about whether the trunk was in the car and who saw it when; Sanders, the same thing.

Ross straightened out a lot of those things, and I’m concerned if we follow the Wyoming Supreme Court, we’re just going to get right back into that same case-by-case thing where people never knew what the answer was.

Donna D. Domonkos:

Ross… the bright line rule in Ross was… was that all containers could be searched.

The Wyoming Supreme Court notice test still carries the presumption that all containers within a vehicle where there’s probable cause to believe contraband may be concealed can be searched, unless they know or have reason to know that the container they want to search belongs to someone they do not have probable cause to search.

Anthony M. Kennedy:

Unless the suspect had immediate access to that object before the search.

Isn’t that another exception?

Donna D. Domonkos:

That’s another exception–

Anthony M. Kennedy:

Well, so that it’s not as straightforward even as you’ve just stated it.

Donna D. Domonkos:

–But it’s still in compliance with this Court’s holdings.

In Zurcher v. Stanford Daily, they said that if the cop… or the officer has reason to believe that evidence is concealed, they may still search a third party.

So, once again it’s in compliance with this Court’s precedent that there has to be some kind of probable cause, some reason to believe that this container contains evidence.

In this case, the officer was searching for evidence of Mr. David Young’s drug usage.

There was no indication that that drug usage evidence was going to be in Sandra Houghton’s purse.

Ruth Bader Ginsburg:

Would the case have come out differently if the prosecutor hadn’t made a point of saying, now, we kept our eye on that car and we… we know that there was no opportunity to just slip this into her purse, so she’s responsible?

Donna D. Domonkos:

Yes, it’s possible the outcome would have been different, but since we have evidence in this case that says, from the officer who testified, that the car was under surveillance the entire time and there was no chance for David Young to slip any evidence into Sandra Houghton’s purse, there was no reason to believe that his possession crime would be… evidence of this crime would be in her purse.

Stephen G. Breyer:

That isn’t actually what they said.

I thought that the… what they said on the facts is that after the officer shined the lights, nobody slipped anything into the purse.

But they had been driving together for we know… we don’t know how long.

Stephen G. Breyer:

I mean, that’s what I don’t understand about this case.

Why isn’t there probable cause to believe it was in the purse?

You have a person with a syringe in his pocket.

He says he’s a drug user.

He’s driving along.

If you think he has drugs, why wouldn’t you think there would be drugs in the car?

And an obvious place to put them would be in a purse.

If you were a drug user, you don’t have people driving in the car when your syringe is exposed unless you trust them.

I mean, why doesn’t that at least give probable cause to search the purse, if that makes a difference?

Donna D. Domonkos:

This Court has already rejected a similar argument in Sibron v. New York where they said that the mere association with a drug addict… and this was a person… or a case where the person was associating with these drug addicts for approximately 8 hours throughout a day.

And this Court said that was not enough to presume that this person was also involved with drugs.

The fact that Sandra Houghton was in this vehicle with someone that is possibly a known drug addict cannot rise to that level of probable cause unless the officer sees something.

William H. Rehnquist:

Didn’t she give a false name to the officers?

Donna D. Domonkos:

Yes, she did, but the officer didn’t know this until he did breach–

William H. Rehnquist:

Doesn’t… doesn’t that suggest that the idea of identifying who’s who in a car is… is not going to be all that straightforward?

I mean, to say… you know, she says it’s her purse.

Well, if she… if she can give a false name, she can probably make a false statement that it’s her purse too.

Donna D. Domonkos:

–Yes, she could make a false statement, but in this case we have an officer who made the determination.

He made the determination that he had probable cause to search the vehicle because of probable cause on David Young.

He also said that he knew the purse did not belong to David Young and that he did not have probable cause on Sandra Houghton–

Stephen G. Breyer:

Suppose he did.

Would that… would you then lose or not?

Donna D. Domonkos:

–I’m sorry.

Stephen G. Breyer:

Suppose after reading Sorrano and so forth, I thought, well, to me anyway, he does have probable cause to search the purse.

It makes a lot of sense.

Suppose I thought that.

I’m just saying this hypothetically.

Then you lose or not?

I’m not sure.

I’m asking because I’m not sure.

Stephen G. Breyer:

If he had probable cause to search the purse, what’s the right analysis?

Donna D. Domonkos:

Yes, if he had probable cause to search the purse, then–

Stephen G. Breyer:

Then that’s it.

Donna D. Domonkos:

–Then he had probable cause to search the purse and the actions of the officer would have been in compliance with this Court’s–

Stephen G. Breyer:

But if… if he had probable cause to search her, he couldn’t do it, according to the Government.

Donna D. Domonkos:

–No, I believe if he had probable cause to search her, he would have had probable cause to search her purse, all effects.

Stephen G. Breyer:

But he couldn’t have searched her without arresting her or something?

Forget it.

[Laughter]

As… as I understand your… I think I’m right about this.

Suppose in the back seat the officer sees a tote bag, a gym bag, a man’s lunch box, a brown paper sack, a Gucci bag, and a purse.

As I understand it, your position is he can search everything but the purse.

Donna D. Domonkos:

Yes, Your Honor, if the facts are the same as in this case where you have a male driver, two female passengers, and there’s no reason to believe that he has secreted something within the purse because the indication there at that point is that the purse does not belong to David Young.

It would be the same as if there is a briefcase–

Anthony M. Kennedy:

And, of course, if that’s the rule that we make, then probably the best place for this man to put it would be in the purse.

Donna D. Domonkos:

–It is possible that that is the way that he could have done it, but there would have to be some reason to believe that he did before this… before he would be allowed to–

Ruth Bader Ginsburg:

It’s unlikely that a man who is driving around with a syringe sticking out of his pocket is going to be conscious of hiding things.

[Laughter]

Donna D. Domonkos:

–Yes.

I’m not sure I understand the… if there was a question.

Ruth Bader Ginsburg:

The question was maybe he transferred it before the lights were on the vehicle.

At least in this scenario, this was a terribly careless man.

Donna D. Domonkos:

Yes.

But once again, if he had transferred something before the officer had shined the light or before he started observing, then he would have no reason to believe that the evidence had been secreted within this purse.

Stephen G. Breyer:

Suppose I wanted the simplest rule on the ground that this a borderline case.

It is borderline I think and it’s quite complex.

What’s the simplest rule?

I mean, what they’re arguing is that a container is a container.

That’s the end of it.

That’s simple.

Stephen G. Breyer:

Now, what would you say?

Donna D. Domonkos:

The… the rule would be that where there is only one person within a vehicle, if you have probable cause to search the vehicle, you may search all containers within the vehicle.

If there is a passenger present and you know the item you want to search belongs to the passenger, then you cannot search unless you have probable cause to search the passenger.

Stephen G. Breyer:

That would go for trunks, large cardboard boxes, valises, chicken coups, whatever the… the passenger says, oh, this all belongs to me.

He says, well, this is all mine.

It’s not the driver’s, and then that’s it.

You can’t search it.

Donna D. Domonkos:

Yes, because there would be no probable cause, and this Court has required probable cause.

Ruth Bader Ginsburg:

Well, are you saying that the passenger’s say-so is enough?

I mean, the reason this purse was identified was that there was an ID card with her name and her picture on it.

So, as I understood the Wyoming Supreme Court, it’s not enough that the passenger says, yes, that gym bag is mine or whatever.

Donna D. Domonkos:

There has to be objective criteria that indicates that it belongs to the passenger.

In this case, the officer said he didn’t believe it belonged to David Young because he was male and this was a purse, and so it would belong to one of the passengers who were female.

David H. Souter:

So, the presumption is that a container in the car belongs to the driver unless there is affirmative evidence to show the contrary.

That would be your rule.

Donna D. Domonkos:

That’s correct.

And that evidence can come in many ways: initials on a briefcase, so if you have someone asserting ownership over the briefcase, and the initials on the briefcase do not–

William H. Rehnquist:

Well, that… that kind of discriminates in favor of rich people in a way, doesn’t it?

[Laughter]

If you can afford to have initials put on your briefcase, you can avoid search, but if you just have a… something that doesn’t have your initials on it, you can’t?

Donna D. Domonkos:

–I’m just saying there’s objective criteria to look for and that could be one of them.

Anthony M. Kennedy:

Even I have initials on my briefcase, Mr. Chief Justice.

[Laughter]

But the… the… the statement of the passenger that this belongs to me would not be sufficient?

Donna D. Domonkos:

In most instances, not.

William H. Rehnquist:

Well, what instances would it be?

You say in most instances it wouldn’t be.

Donna D. Domonkos:

In instances like in this case where we have the belief of the officer that it did not belong to the driver.

He had some criteria that he looked at and he said it did not belong to the driver.

John Paul Stevens:

Well, if you’ve got a male driver and two female passengers, I suppose you’d think the purse didn’t belong to the driver.

Donna D. Domonkos:

That’s correct.

John Paul Stevens:

Yes.

Donna D. Domonkos:

And so that, with claiming ownership from Sandra Houghton, is enough to… to say, okay, this item does not belong to the driver.

It belongs to the passenger.

Now you must have probable cause to search the passenger before… you have to have the probable cause before the search can commence.

Ruth Bader Ginsburg:

The… suppose this police officer, instead of just saying, is this your purse, he said, is this your purse?

She says, yes.

He says, mind if I search it?

That’s a familiar scenario.

Donna D. Domonkos:

Yes, it is.

Ruth Bader Ginsburg:

And… and the answer is often yes.

Donna D. Domonkos:

And if there is a yes answer that he can search it, then he has consent to search, and there would be no… no problem with the validity of the search.

Stephen G. Breyer:

She left the bag too.

I mean, most… most people, when they have a bag… I think a woman who has a bag normally just takes it with her, and she left it in the car.

So, the officer is thinking, look, here he has a syringe hanging out, he says he’s a drug user, she’s been driving with him I don’t know how long, there’s a bag right in the back seat, and she leaves it in the car.

Now, does that amount to probable cause to search the bag?

Donna D. Domonkos:

No, Your Honor, and the reason for that is because there’s no indication that this was a voluntary leaving the bag in the car.

We also don’t want to encourage them to be grabbing for these kind of items while they’re getting out of the car because then that’s going to pose a… a safety problem for the officer.

And so, it is… like I said… and the record does not disclose that this was an actual voluntary leaving of the… the bag within there.

She was ordered out of the car.

The State’s argument and what they are asking this Court to do is to carve out an exception to the probable cause requirement that this Court has held is always necessary before a search can happen, whether it be under the automobile exception where all that has been… all that has changed with the automobile exception–

Sandra Day O’Connor:

Well, I had thought it was a fairly straightforward application of Ross, but you don’t agree with that.

Donna D. Domonkos:

–No, I do agree with that.

I do agree that because there’s probable cause required before the officer may search, this is the application of Ross.

William H. Rehnquist:

Well, but I think it’s you who are wanting to carve… carve out the exception from the language of Ross which says that any container in the car can be searched when there’s probable cause.

You’re saying no in the case… case of a passenger.

So, I think the exception carving is the Wyoming Supreme Court and not your opponent.

Donna D. Domonkos:

Your Honor, I would disagree because of the fact that just like you said with the Ross holding, probable cause is required, and in this holding, the Wyoming Supreme Court said there was no probable cause to believe the evidence was going to be found in her personal effects.

William H. Rehnquist:

Well, but that’s the inquiry that was superseded under Ross.

I mean, you no longer had to make that sort of an inquiry.

William H. Rehnquist:

When there was probable cause to search the car, you could search any container in the car.

And then so, what the Wyoming Supreme Court here said is, no, that’s not… that’s not quite true when you have a passenger.

Donna D. Domonkos:

Ross did not have any passengers, so we really… we don’t really know what would have happened had Ross had a passenger, but the fact remains that Ross requires probable cause to search.

And also, Ross also identified the fact that it’s the owner of the container who is protected, and the owner of this container was Sandra Houghton.

She is the one protected by the Fourth Amendment, and that protection is that unless there’s probable cause, the search is unreasonable.

John Paul Stevens:

One of the problems with the Ross opinion is it also said the search of the car should be coextensive with the search that would be authorized if they had a warrant with probable cause.

But the problem is I don’t think the Court has ever decided whether even if you had a warrant for a house or whatever it is, you could search an individual’s purse who happens to be within the place described in the warrant.

I think that’s an open question, and that’s why Ross doesn’t completely answer it.

Donna D. Domonkos:

That is correct.

Yes.

And we have to take a look at what would have happened if this officer had sought a warrant.

I believe David Young possesses drugs because he had a syringe and he admits to taking drugs.

I also know that in this vehicle was a passenger, Sandra Houghton, and she has a purse.

I have no reason to believe he hid this… any evidence of his drug usage in her purse, and I have no probable cause to believe she is involved with any illegal activity.

Would a warrant be issued in that circumstance?

And I don’t believe it would be.

And so, under Ross–

John Paul Stevens:

Well, the question isn’t whether the warrant would be issued.

The question is whether… if the warrant is issued describing the car, whether that warrant would authorize the search of a particular person who happens to be in the car, a person’s purse, or whatever it is.

And the same question with… for a house.

And part of the problem is we’ve never decided it.

Donna D. Domonkos:

–And that… that is true.

Yes.

I guess we can look to Ybarra, which is the same thing that the Wyoming Supreme Court did, and they said, here is a warrant that was issued, but there was no reason to believe that Ybarra was involved with criminal activity.

And so, the warrant would not extend–

William H. Rehnquist:

But that… that was… that was a search of a person, was it not?

Ybarra?

Donna D. Domonkos:

–Yes, it was a search of a person.

William H. Rehnquist:

And it was… it had nothing to do with an automobile.

Donna D. Domonkos:

No, it did not.

Donna D. Domonkos:

It’s just looking at the analogy of what a warrant that was issued would allow, and in Ybarra, it would not allow this search because the officer didn’t have any reason to believe… no probable cause to believe this person was involved with criminal activity.

John Paul Stevens:

Of course, the bright… bright line rule in Ross didn’t… didn’t really last all that long because it was changed in Acevedo.

There was a dramatic change in the rule in that case.

Donna D. Domonkos:

Yes.

In that case we then had the probable cause just on the container that was in place within… in the vehicle.

Stephen G. Breyer:

Why isn’t that true here… the purse?

I mean, it’s… I can’t get over the fact it’s… perhaps it’s just my own odd way of looking at the world, but… that it would be an obvious thing for a drug addict driver to put the drugs in this purse which is right next to him or nearby.

Now, you’re saying there’s no way in that situation that the law permits a search of the purse.

I’m not saying Ms. Houghton was involved, but it just seems logical that he could have put it there.

So, don’t we have probable cause for the purse, though not necessarily for the person?

Donna D. Domonkos:

And that is the second part of the notice test.

If you have reason to believe that the evidence has been secreted within this purse, you can search it.

Stephen G. Breyer:

And is it not… but… I see.

All right, we’re back–

Donna D. Domonkos:

I’m sorry.

I didn’t mean to interrupt.

William H. Rehnquist:

–Why was there not reason to believe that it might have been secreted in the purse?

Donna D. Domonkos:

The officer said he kept the vehicle under surveillance from the time that he observed the speeding and the taillight.

He kept it under observance from that time period till he stopped.

Once he stopped, he placed the light on the interior of the vehicle and he said he saw no movement.

William H. Rehnquist:

Well, but would he necessarily see a movement while he was following the thing?

I mean, it doesn’t take much to simply hand something from the front seat to the back seat.

Donna D. Domonkos:

He testified he saw no movement.

Stephen G. Breyer:

But what about putting it there before he saw?

I mean, we’re back in circles, but your answer to that was simply there’s a Supreme Court case that says it isn’t probable cause.

Right?

Donna D. Domonkos:

Just that he associated with drug addicts, and that’s all that you would have at that point.

And any time prior to his observance–

William H. Rehnquist:

This just doesn’t quite conform to common sense in… in my view.

I think that’s what Justice Breyer was saying.

William H. Rehnquist:

You know, this… going… if I may be forgiven the expression, going around Robin Hood’s barn to figure out what was going on when it seems perfectly common sense to say this guy was spotted for a… for an offense.

He was being followed by the police.

He had a syringe in his pocket.

If he was going to put his drugs somewhere, he’s going to put them in some container in the car.

What’s wrong with that just as a matter of common sense?

That’s where I started.

Well, what’s wrong is that they didn’t find him guilty of possessing drugs.

He had an empty syringe.

So, he didn’t have any drugs.

Donna D. Domonkos:

–The other thing too is that we have no indication that Sandra Houghton did know about the syringe.

The officer who approached his vehicle had a better vantage point to see within the pocket of the driver.

William H. Rehnquist:

Well, but couldn’t he have grabbed her purse perhaps without her knowledge?

Donna D. Domonkos:

It is possible that it could have happened, yes.

But the officer did not have any reason to believe that happened.

William H. Rehnquist:

Well, why did he need to have a… any more reason to believe?

The guy had a syringe.

Presumably he had drugs somewhere, and there were containers in the car.

Why didn’t that give him probable cause to search the containers?

Donna D. Domonkos:

Absent any actual knowledge that this happened, it is just a presumption that it could have happened, and since the owner is the one that is protected, we have to look at how we are going to protect Sandra Houghton.

And there was no probable cause to search her and there was no–

William H. Rehnquist:

She turned out… there were drugs in her purse, were there not?

Donna D. Domonkos:

–That is correct.

That is correct.

There were.

John Paul Stevens:

But they were her drugs not his, weren’t they?

But I mean, they’re not… there’s no indication they were placed in the purse by the driver.

They just… she happened to have drugs, and it’s just that, you know, they just stumbled on this really.

In fact, she probably planted the pipe on him.

[Laughter]

Donna D. Domonkos:

Always possible, yes.

Stephen G. Breyer:

Is that… is that the case?

I hadn’t taken that in, that they… they weren’t his drugs?

Donna D. Domonkos:

She actually disclaimed ownership of–

Stephen G. Breyer:

She said they weren’t mine.

Donna D. Domonkos:

–Yes, of some of the drugs that were within her purse, but she did claim ownership of some.

John Paul Stevens:

Yes, but the jury didn’t believe that.

She also gave a false name.

[Laughter]

Donna D. Domonkos:

Yes, she did.

Ruth Bader Ginsburg:

The driver and the other passenger were clean as far as the police were concerned.

She was the only one prosecuted.

Is that–

Donna D. Domonkos:

That is correct.

They let Mr. Young and the other passenger go that evening and they did not place him under arrest or the other passenger.

She was the only one placed under arrest that evening.

John Paul Stevens:

–Did they search her purse?

And actually the other passenger was in the middle, wasn’t she?

Donna D. Domonkos:

That is correct.

John Paul Stevens:

And… and she… her… was her purse searched too?

Donna D. Domonkos:

I’m not aware it if it was or whether she even had a purse.

John Paul Stevens:

The record doesn’t tell us because you would think if he was going to put them on… in the purse, he’d put them in the woman next to him rather than the one over by the door.

Donna D. Domonkos:

That is correct.

Stephen G. Breyer:

What happened in respect… there was something in… there’s some reference to her trying to give the impression it wasn’t her purse, isn’t there?

What was that about?

Donna D. Domonkos:

No.

There were three wallet type containers within the purse, and those were where the contraband was found.

Now, the first one that was pulled out, she said that is not mine, and then another one was pulled out and she said that one is mine.

So, she did claim ownership even of the contraband that was pulled out of the purse, but she disclaimed ownership of part of the contraband that was pulled out of the purse.

The Fourth Amendment requires probable cause, and in this case there was no probable cause to search the passenger.

The Wyoming Supreme Court ruling is consistent with this Court’s holdings in Ross and Acevedo which require probable cause before a container can be searched.

Donna D. Domonkos:

The State is asking this Court to carve out an exception to the probable cause requirement and say, your mere presence in a vehicle is enough to search your personal effects as long as there’s probable cause for the vehicle generally.

Stephen G. Breyer:

Can I ask you one other detail?

I’m sorry.

On the fact are we objecting… are you objecting to the search of the purse or the wallet in the purse?

Donna D. Domonkos:

We are objecting to the search of the… of the purse.

It would also be an objection to searching anything within the purse as well.

Ruth Bader Ginsburg:

But only from the point when they knew that it was hers and not Young’s.

Donna D. Domonkos:

That is correct.

Without probable cause, this… this search should never have happened, and we’re asking this Court to affirm the ruling of the Wyoming Supreme Court when they adopted the notice test that required probable cause before a passenger could be searched or, in the alternative, if they have reason to believe that a container is still concealing the contraband, that they can search it.

Both of these ideologies are consistent with this Court’s rulings.

Thank you.

William H. Rehnquist:

Thank you, Mrs. Domonkos.

Mr. Rehurek, you have a minute remaining.

Paul S. Rehurek:

Thank you, Your Honor.

I would just ask the Court, unless it has questions, to envision a group of officers in the middle of the night in Wyoming standing around for 60 minutes, as just happened here, trying to figure out whether they can search the purse in the back of the car and ask that this Court overrule the Wyoming Supreme Court and apply Ross to this situation.

Thank you.

William H. Rehnquist:

Thank you, Mr. Rehurek.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.