Petition for Writ of Certiorari — Wanda L. Edwards, Petitioner v. South Dakota
Supreme Court briefFeb 10, 2025
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No. 24-____
In the Supreme Court of the United States
________________________________________
WANDA LYNN EDWARDS, PETITIONER
v.
STATE OF SOUTH DAKOTA
________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE
OF SOUTH DAKOTA
________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________
Conor Duffy
DUFFY LAW FIRM
1321 Mt. Rushmore Rd.
Rapid City, SD 57701
Shay Dvoretzky
Counsel of Record
Parker Rider-Longmaid
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
Nicole Welindt
1440 New York Ave. NW
SKADDEN, ARPS, SLATE, Washington, DC 20005
MEAGHER & FLOM LLP 202-371-7000
shay.dvoretzky@skadden.com
525 University Ave.
Palo Alto, CA 94301
Raza Rasheed
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
2000 Ave. of the Stars,
Ste. 200N
Los Angeles, CA 90067
Counsel for Petitioner
i
QUESTION PRESENTED
When police officers have probable cause to believe that a stopped car contains contraband, they
may search containers in the car, including a purse
sitting on the back seat. See Wyoming v. Houghton,
526 U.S. 295, 300-01, 307 (1999). But probable cause
to search the car does not authorize a search of the
passengers themselves, including their outer clothing.
See id. at 303. Justice Breyer raised the question
whether a search is authorized “if a woman’s purse,
like a man’s billfold,” is “attached to her person.” See
id. at 308 (Breyer, J., concurring). He explained that
the purse may count as “outer clothing” that “receive[s] increased” constitutional “protection,” and
cannot be searched just because an officer has reason
to stop the vehicle or search its driver. Id. That open
question has divided state high courts, and the Court
should resolve the acknowledged split.
Here, Petitioner Wanda Lynn Edwards was a passenger in a vehicle that a police officer in Sturgis,
South Dakota, pulled over for driving without its
headlights on. During the traffic stop, another officer
forcibly took and searched the purse Ms. Edwards
wore on her shoulder. As a result of the search, Ms.
Edwards was convicted of drug possession.
The question presented is whether officers must
have probable cause to search purses held or worn by
passengers during traffic stops (as the Supreme
Courts of Kansas, North Dakota, and Idaho have
held), or whether officers may conduct warrantless
searches of any purses held by any person in a stopped
vehicle (as the South Dakota Supreme Court, joining
the Supreme Courts of Minnesota, Nebraska, and
Ohio, held below over a dissent).
ii
RELATED PROCEEDINGS
Supreme Court of the State of South Dakota (S.D.):
State of South Dakota v. Wanda L. Edwards,
No. 30448-a-SRJ, 2024 S.D. 62, 13 N.W.3d 199
(Oct. 16, 2024)
State of South Dakota Circuit Court:
State of South Dakota v. Wanda L. Edwards, No.
46CRI22-001154 (Aug. 23, 2023) (judgment of
conviction)
State of South Dakota v. Wanda L. Edwards, No.
46CRI22-001154 (Mar. 10, 2023) (findings of
fact and conclusions of law regarding defendant’s motion to suppress and order)
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
RELATED PROCEEDINGS ...................................... ii
TABLE OF AUTHORITIES ........................................ v
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION .......................................................... 5
CONSTITUTIONAL PROVISION INVOLVED ........ 5
STATEMENT .............................................................. 5
A. Legal background ........................................... 5
B. Factual and procedural background ............ 10
REASONS FOR GRANTING THE PETITION ....... 13
I.
State high courts have divided over
whether a police officer who may lawfully
search an automobile may search a purse
that a passenger is holding................................. 15
A. In three states, officers conducting an
otherwise lawful warrantless search of
an automobile may not search a purse
held by a passenger. ..................................... 16
B. In four states, a lawful warrantless
automobile search may include a search
of a purse held by a passenger. .................... 18
C. The split is outcome-determinative, and
only this Court can resolve it. ...................... 22
II. The question presented is important, and
this case is an ideal vehicle for resolving it. ...... 22
A. The question presented is important. .......... 22
iv
TABLE OF CONTENTS
(continued)
Page
B. The South Dakota Supreme Court’s
rule confers greater Fourth Amendment
protections to men than women. .................. 25
C. This case presents an ideal vehicle for
resolving the question presented. ................ 27
III. The South Dakota Supreme Court’s
decision is wrong. ................................................ 28
CONCLUSION .......................................................... 32
Appendix A
Supreme Court of
South Dakota opinion,
October 16, 2024 ...................... 1a
Appendix B
Judgment of conviction,
August 23, 2023 ..................... 17a
Appendix C
Findings and Verdict
After Court Trial,
June 23, 2023 ......................... 24a
Appendix D
Trial court’s Findings of Fact
and Conclusions of Law
Regarding Defendant’s
Motion to Suppress
and Order,
Mar. 10, 2023 ......................... 28a
v
TABLE OF AUTHORITIES
Page(s)
CASES
Arizona v. Gant,
556 U.S. 332 (2009) ....................................... 7, 8, 14,
.................................................................... 23, 24, 28
Boyd v. United States,
116 U.S. 616 (1886) ................................................ 24
California v. Acevedo,
500 U.S. 565 (1991) .................................................. 6
Carpenter v. United States,
585 U.S. 296 (2018) ................................................ 24
Carroll v. United States,
267 U.S. 132 (1925) .................................................. 6
Chambers v. Maroney,
399 U.S. 42 (1970) .................................................... 6
Chimel v. California,
395 U.S. 752 (1969) ................................................ 24
District of Columbia v. Wesby,
583 U.S. 48 (2018) .................................................. 23
Katz v. United States,
389 U.S. 347 (1967) .................................................. 5
New York v. Belton,
453 U.S. 454 (1981) .................................................. 7
Riley v. California,
573 U.S. 373 (2014) ................................................ 24
State v. Barrow,
989 N.W.2d 682 (Minn. 2023).......................... 19, 20
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
State v. Boyd,
64 P.3d 419 (Kan. 2003) ............................ 16, 17, 30
State v. Groshong,
135 P.3d 1186 (Kan. 2006)..................................... 17
State v. Lang,
942 N.W.2d 388 (Neb. 2020) .................................. 20
State v. Maloney,
489 P.3d 847 (Idaho 2021) ..................................... 18
State v. Mercier,
885 N.E.2d 942 (Ohio 2008) ...................... 20, 21, 22
State v. Mercier,
No. C-060490, 2007 WL 1225858
(Ohio Ct. App. Apr. 27, 2007) ................................ 21
State v. Newsom,
979 P.2d 100 (Idaho 1998) ..................................... 18
State v. Tognotti,
663 N.W.2d 642 (N.D. 2003) ................ 17, 18, 29, 31
Terry v. Ohio,
392 U.S. 1 (1968) ................................................ 9, 29
United States v. Di Re,
332 U.S. 581 (1948) ......................................... 4, 8, 9,
.............................................................. 15, 20, 30, 31
United States v. Ross,
456 U.S. 798 (1982) ......................................... 3, 4, 6,
.............................................................. 15, 23, 27, 31
Wong Sun v. United States,
371 U.S. 471 (1963) ................................................ 22
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Wyoming v. Houghton,
526 U.S. 295 (1999) ......................................... 1, 2, 3,
............................................................... 4, 5, 7, 9, 12,
....................................................... 14, 15, 16, 17, 18,
.................................................. 19, 21, 27, 28, 29, 30
Ybarra v. Illinois,
444 U.S. 85 (1979) ................................................ 8, 9
CONSTITUTION AND STATUTES
U.S. Const. amend. IV .................................... 1, 3, 4, 5,
........................................................... 6, 8, 11, 12, 13,
................................................. 14, 15, 16, 17, 18, 22,
............................................ 23, 24, 25, 27, 28, 30, 31
U.S. Const. amend XIV ............................................... 4
U.S. Const. amend XIV, § 1 ............................... 4, 27
28 U.S.C. § 1257(a) ...................................................... 5
28 U.S.C. § 2101(c) ...................................................... 5
OTHER AUTHORITIES
Hannah Carlson, Pockets: An Intimate History
of How We Keep Things Close (2023) .............. 25, 26
Jan Diehm & Amber Thomas, Pockets,
The Pudding (Aug. 2018),
https://pudding.cool/2018/08/pockets/ ................... 26
Justin George & Eric Sagara, How to Cut Down
on Searches in Traffic Stops: Legalize Pot,
The Marshall Project (June 21, 2017),
https://tinyurl.com/y4mjvsk6................................. 23
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Fumiko Ichikawa et al., Where’s the Phone?
A Study of Mobile Phone Location in
Public Spaces, Proceedings of the 2005
2nd International Conference on
Mobile Technology, Applications
and Systems (Dec. 2005).................................. 26, 27
Open Policing Project, Findings,
Stanford University (2023),
https://openpolicing.stanford.edu/findings/ ...... 3, 23
1
INTRODUCTION
This case presents an entrenched and acknowledged conflict over an important constitutional
question: whether police officers may conduct a warrantless search of a purse that a car’s passenger is
holding or wearing, just because the officers may lawfully search the car. The Supreme Courts of Kansas,
North Dakota, and Idaho say no—like the passenger
and her clothing, a purse the passenger is wearing is
protected from warrantless search. Justice Breyer
teed up the critical question in Wyoming v. Houghton,
526 U.S. 295 (1999), observing that “if a woman’s
purse, like a man’s billfold, were attached to her person,” then it might “amount to a kind of ‘outer
clothing,’ which under the Court’s cases would
properly receive increased protection.” See id. at 308
(Breyer, J., concurring). But the South Dakota Supreme Court below disagreed, siding instead with the
Supreme Courts of Minnesota, Nebraska, and Ohio to
hold that officers may search passengers’ purses without a warrant even when the passengers are holding
them. Over a dissent, the South Dakota high court
held that Ms. “Edwards’ purse was not entitled to a
heightened expectation of privacy and was subject to
the same search conditions as any other container
found inside of the vehicle that was capable of concealing contraband.” App. 13a-14a.
The question implicates fundamental, constitutionally recognized privacy rights, and this case is an
excellent vehicle for resolving it. Moreover, the South
Dakota Supreme Court’s decision was wrong, and it
cheapens the Fourth Amendment’s protections
against warrantless searches of a person’s clothing.
The Court should grant review and reverse.
2
1. Petitioner Wanda Lynn Edwards was a passenger in a car that police stopped because its
headlights were off. App. 3a. During the stop, Ms. Edwards held her purse on her lap and wore it on her
shoulder, insisting that police needed a warrant to
search it. App. 5a. But an officer at the scene forcibly
took and searched her purse, finding “a small amount
of methamphetamine and drug paraphernalia.” App.
3a, 5a. The trial court refused to suppress the evidence, and, after a bench trial, it convicted Ms.
Edwards of “possession of a controlled substance, obstructing a law enforcement officer, and possession of
drug paraphernalia.” App. 6a. The South Dakota Supreme Court upheld the search. App. 13a-14a.
2. The lower courts are intractably divided about
the legality of searches like the one conducted here.
The Court’s precedents establish that when officers
stop a car and develop probable cause to believe it contains contraband, they may conduct a warrantless
search of any unattended containers in the car, like a
purse sitting on the back seat. See Houghton, 526 U.S.
at 307. But probable cause to search the vehicle does
not authorize the officers to search the passengers or
to rifle through passengers’ pockets. See id. at 303. As
Justice Breyer anticipated, however, those decisions
do not resolve whether a purse the passenger is wearing or holding counts as the sort of outer clothing that
receives constitutional protection. Id. at 308 (Breyer,
J., concurring). State high courts have split on that
question.
On one side, the Supreme Courts of Kansas, North
Dakota, and Idaho hold that a purse a passenger carries is not subject to search during a warrantless
automobile search. Those courts reason that a purse
on a passenger’s person is analogous to outer clothing.
3
On the other side, the Supreme Court of South Dakota
here joined the Supreme Courts of Minnesota, Nebraska, and Ohio in holding that a purse held by a
passenger is subject to search during a warrantless
search of the car. The split is entrenched, and further
percolation will not help resolve it or make this
Court’s job any easier. Only this Court can resolve the
conflict.
3. The question presented is important, and this
case is an ideal vehicle for resolving it. Every day, police officers stop over 50,000 vehicles. Open Policing
Project, Findings, Stanford University (2023),
https://openpolicing.stanford.edu/findings/.
This
Court has recognized that “it is not uncommon for police officers to have probable cause to believe that
contraband may be found in a stopped vehicle,” meaning that police officers often search those vehicles.
United States v. Ross, 456 U.S. 798, 803-04 (1982).
The South Dakota Supreme Court’s decision imperils
the constitutional rights of passengers in those cars.
And it does so in a way that uniquely disadvantages
women—the court below granted greater constitutional protections to the way many men carry their
belongings than the way many women do. But the
Fourth Amendment protects “persons … and effects”
equally, U.S. Const. amend. IV, without distinguishing between “worthy” and “unworthy” containers.
Ross, 456 U.S. at 822. And this issue is particularly
important to Ms. Edwards. If the decision below is
overturned, Ms. Edwards’s suppression motion would
be granted, and the evidence obtained during the traffic stop would be suppressed and her convictions
vacated.
4. The decision below is wrong. In assessing the
reasonableness of a warrantless search, courts
4
consider “on the one hand, the degree to which [the
search] intrudes upon an individual’s privacy and, on
the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
Houghton, 526 U.S. at 299-300. Individuals have a significant privacy interest in the purses they hold,
because purses are “repositories of especially personal
items.” Id. at 308 (Breyer, J., concurring). The government has a greater investigatory interest in
passengers’ purses that aren’t near the passengers—
a criminal has more opportunity to hide contraband in
those belongings, see id. at 305-06 (majority opinion),
than in purses on passengers’ persons. A passenger
has especially significant privacy interests in a purse
she is wearing. Thus, as with clothing worn by passengers, balancing the interests weighs against searching
purses held by passengers. See United States v. Di Re,
332 U.S. 581, 583, 595 (1948). Indeed, treating purses
held by passengers differently than the passengers’
coat pockets would contravene this Court’s instruction
that the Fourth Amendment does not distinguish between “worthy” and “unworthy” containers, see Ross,
456 U.S. at 822, to say nothing of the Fourteenth
Amendment’s command that states must afford men
and women “the equal protection of the laws.” U.S.
Const. amend XIV, § 1.
The Court should grant review.
OPINIONS BELOW
The Supreme Court of South Dakota’s opinion
(App. 1a-16a) is reported at 13 N.W.3d 199. The South
Dakota Circuit Court’s judgment of conviction, findings and verdict after court trial, and findings of fact
and conclusions of law regarding defendant’s motion
to suppress and order are unpublished, but are
5
reproduced at App. 17a-23a, App. 24a-27a, and App.
28a-41a, respectively.
JURISDICTION
The Supreme Court of South Dakota entered its
judgment on October 16, 2024. App. 2a. Justice Kavanaugh’s order of December 23, 2024, extended the
time to file the petition for a writ of certiorari to February 13, 2025. See 28 U.S.C. § 2101(c). This petition
is timely filed on February 10, 2025. The Court has
jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment provides: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”
U.S. Const. amend. IV.
STATEMENT
A. Legal background
“The Fourth Amendment protects ‘the right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.’” Houghton, 526 U.S. at 299 (alteration
adopted). “[S]earches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967).
6
This case involves the convergence of two lines of
Fourth Amendment caselaw. On the one hand, a police officer who has authority to conduct a warrantless
search of a vehicle may search containers in the vehicle that are not on a passenger’s person. On the other
hand, a police officer who has authority to conduct a
warrantless search of the vehicle may not conduct a
body search of a passenger or rummage through a passengers’ pockets.
1. a. The “automobile exception,” California v.
Acevedo, 500 U.S. 565, 566 (1991), provides that where
police officers have probable cause to believe that an
automobile contains evidence of contraband, the officers may search the automobile without a warrant. See
Carroll v. United States, 267 U.S. 132, 149 (1925). The
rationale for the exception is that “the car is movable,
the occupants are alerted, and the car’s contents may
never be found again if a warrant must be obtained.”
Chambers v. Maroney, 399 U.S. 42, 51 (1970).
The officers’ authority to search the car includes
searching containers in the car that are not on a passenger’s person. See Ross, 456 U.S. at 825. “If probable
cause justifies the search of a lawfully stopped vehicle,
it justifies the search of every part of the vehicle and
its contents that may conceal the object of the search.”
Id. The Court has explained that the scope of a warrantless search of an automobile is “defined by the
object of the search and the places in which there is
probable cause to believe that it may be found.” Id. at
824. That limitation means, for example, that “probable cause to believe that undocumented aliens are
being transported in a van will not justify a warrantless search of a suitcase.” Id.
7
The Court in Houghton explained that as part of
the search of containers in the vehicle, police officers
may search a passenger’s purse that is sitting unattended in the car. 526 U.S. at 307. In that case, a
Highway Patrol officer stopped an automobile for
speeding and driving with a faulty brake light. Id. at
297. The officer saw a syringe in the driver’s pocket,
and the driver admitted to taking drugs. Id. at 298.
Given that admission, the officer searched the car, including a purse on the back seat that belonged to a
passenger sitting in the front seat. Id. The Court concluded that the search of the purse was lawful because
“[a] passenger’s personal belongings, just like the
driver’s belongings or containers attached to the car
like a glove compartment, are ‘in’ the car, and the officer has probable cause to search for contraband in
the car.” Id. at 302.
b. Another exception for searches incident to arrest also provides for limited searches of containers
within automobiles. In New York v. Belton, 453 U.S.
454, 460 (1981), the Court held “that when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile.” As part of the
search, “the police may also examine the contents of
any containers found within the passenger compartment, for if the passenger compartment is within
reach of the arrestee, so also will containers in it be
within his reach.” Id. at 460-61. But the court has
since clarified that police officers may search only “the
space within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain
possession of a weapon or destructible evidence.’” Arizona v. Gant, 556 U.S. 332, 335 (2009). Thus, after
8
Gant, “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at
the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest.” Id.
at 351.
2. Passengers in a car are not subject to suspicion merely because of their proximity to a driver’s
wrongdoing. In Ybarra v. Illinois, 444 U.S. 85, 91
(1979), the Court set forth a fundamental Fourth
Amendment principle: “a person’s mere propinquity to
others independently suspected of criminal activity
does not, without more, give rise to probable cause to
search that person.” That principle meant that officers
with a search warrant covering the tavern and one of
its employees violated the Fourth Amendment when
they frisked and then searched a customer within the
tavern. Id. at 88-89, 96.
Thus, authorization to conduct a warrantless
search of a car does not permit officers to conduct a
body search of a passenger or rummage through a passenger’s pockets. In Di Re, for example, officers
searched the front seat automobile passenger after an
informer told law enforcement that the driver was
selling counterfeit gasoline ration coupons. 332 U.S.
at 583. The Court held that probable cause to search
a car did not extend to a body search of a passenger.
Id. at 587. The Court was “not convinced that a person, by mere presence in a suspected car, loses
immunities from search of his person to which he
would otherwise be entitled.” Id. That was true even
though “the contraband sought [was] a small article
which could easily be concealed on the person.” Id. at
586. The Court rejected the government’s argument
that “law enforcement will be more difficult and
9
uncertain,” explaining that the Constitution was in
fact designed “to place obstacles in the way of a too
permeating police surveillance.” Id. at 595.
Houghton preserved the limitation that probable
cause to search the automobile does not authorize a
search of the passenger. 526 U.S. at 303. The search
of the purse on the back seat in Houghton was unlike
the searches in Di Re and Ybarra, the Court explained, because those cases “turned on the unique,
significantly heightened protection afforded against
searches of one’s person.” Id. The Court in Houghton
reaffirmed the reasoning in those cases, explaining
that “[e]ven a limited search of the outer clothing …
constitutes a severe, though brief, intrusion upon
cherished personal security, and it must surely be an
annoying, frightening, and perhaps humiliating experience.” Id. (second alteration in original) (quoting
Terry v. Ohio, 392 U.S. 1, 24-25 (1968)). But a search
of a purse that was sitting by itself in the back seat,
away from passengers, did not implicate the same personal interests. Id. at 303-05.
3. While the Court in Houghton did not resolve
the question whether police can conduct a warrantless
search of a purse worn by a passenger during a traffic
stop, Justice Breyer anticipated the issue in his concurrence. He reasoned that the key question would be
whether the purse was held by a passenger: “it would
matter if a woman’s purse, like a man’s billfold, were
attached to her person. It might then amount to a kind
of ‘outer clothing,’ which under the Court’s cases
would properly receive increased protection.” Id. at
308 (Breyer, J., concurring) (quoting Terry, 392 U.S.
at 24)).
10
B. Factual and procedural background
1. In November 2022, petitioner Wanda Edwards was riding as the front-seat passenger in a car
that she owned. App. 3a. A police officer in Sturgis,
South Dakota, Sergeant Tebben, stopped the car because its headlights were not illuminated. Id. The
car’s driver gave Sergeant Tebben his purported
name, but the driver could not give his home address
or social security number, and he did not have his
driver’s license. App. 3a-4a. Sergeant Tebben was unable to verify the driver’s identity, so Sergeant Tebben
asked him to step out of the car, handcuffed him, and
patted him down. App. 4a. During the patdown, Sergeant Tebben “discovered an orange hypodermic
needle cap, two hypodermic needles, and a jewelry bag
with a white crystal-like residue on the driver’s person.” Id. Sergeant Tebben arrested the driver for false
impersonation, possession of a controlled substance,
and drug paraphernalia. Id.
When other officers arrived on the scene, Ms. Edwards was still in the passenger seat of the car, with
her purse on her lap. App. 4a-5a. The officers instructed Ms. Edwards to get out of the car, and she did
so, placing the purse over her shoulder. App. 5a. The
officers told Ms. Edwards to give them her purse so
that they could search it. Id. She repeatedly refused,
maintaining that the officers needed a warrant to
search her purse. Id.
Eventually, one of the officers forcibly seized Ms.
Edwards’s purse. Id. The officers searched the purse
and found “two hypodermic needles, a small mirror
with a white crystalline substance on it, and a bulletshaped keychain that contained a marijuana cigarette.” Id. “The needle and powder presumptively
11
tested positive for methamphetamine.” Id. The officers arrested Ms. Edwards “for possession of a
controlled substance; possession of marijuana, two
ounces or less; obstructing a law enforcement officer;
and possession of drug paraphernalia.” Id.
2. Ms. Edwards moved to suppress the evidence
obtained during the traffic stop. App. 6a. She argued
that the officers’ search of her purse was unconstitutional. Id.
The trial court disagreed and refused to suppress
the evidence. It held that the search of the car was a
lawful search incident to arrest. Id. And because the
purse was a container within the car at the time of the
arrest, it was also subject to search. Id.
After a bench trial, Ms. Edwards was convicted of
“possession of a controlled substance, obstructing a
law enforcement officer, and possession of drug paraphernalia.” Id.
3. a. Ms. Edwards appealed her convictions to
the South Dakota Supreme Court on the ground that
the search of her purse violated the Fourth Amendment. Id. “The State argue[d] that law enforcement
was authorized to search Edwards’ vehicle both as a
search incident to a lawful arrest and because there
was probable cause to believe that criminal activity
was present inside the vehicle based upon the drug
residue and paraphernalia found on the driver’s person.” App. 8a. Countering with “decisions from other
state courts concluding that a purse physically attached to an individual is entitled to an increased
expectation of privacy, much like outer clothing,” Ms.
Edwards argued that “her purse ‘is more analogous to
a pocket attached to her outer clothing than a container resting elsewhere in the vehicle.’” App. 7a-8a &
12
n.1 (alteration adopted). Ms. Edwards explained that
her purse was thus not lawfully subject to search because probable cause to search a vehicle does not
authorize a search of a passenger and her pockets.
App. 10a.
b. The South Dakota Supreme Court, in a 3–1 divided opinion, affirmed Ms. Edwards’s convictions.
App. 3a, 14a. The court first summarized the relevant
caselaw from this Court. It explained that one exception to the Fourth Amendment’s warrant requirement
is that “‘contraband goods concealed and illegally
transported in an automobile or other vehicle may be
searched for without a warrant’ where probable cause
exists.” App. 9a (quoting Houghton, 526 U.S. at 300).
That means that “when a police officer has probable
cause to search a vehicle, they ‘may inspect passengers’ belongings found in the car that are capable of
concealing the object of the search.’” App. 10a (quoting
Houghton, 526 U.S. at 307). But the South Dakota Supreme Court also recognized that “probable cause to
search a vehicle and its containers does ‘not justify a
body search of a passenger.’” Id. (quoting Houghton,
526 U.S. at 303).
The South Dakota Supreme Court concluded,
however, that Ms. “Edwards’ purse was not entitled to
a heightened expectation of privacy and was subject to
the same search conditions as any other container
found inside of the vehicle that was capable of concealing contraband.” App. 13a-14a. The court recognized
decisions from other state courts holding the opposite.
App. 8a n.1. But it reasoned that officers need “a
bright-line rule in cases where a warrantless search of
a vehicle’s passenger compartment is authorized,” and
thus declined to recognize any constitutional protection for purses worn or held by passengers. App. 13a.
13
c. Justice Myren dissented. App. 15a. He explained that “[b]ecause law enforcement was not
allowed to search [Ms. Edwards’s] person and she always maintained direct control and possession of her
purse, [he] would hold that law enforcement was not
authorized to search her purse.” App. 16a. In his view,
“the convenience of law enforcement should not eliminate Edwards’ right to be free from unreasonable
searches and seizures as guaranteed by the Fourth
Amendment.” App. 15a. The search of Ms. Edwards’s
purse was unreasonable because “law enforcement
had no probable cause to believe Edwards was engaged in criminal activity.” App. 15a-16a.
REASONS FOR GRANTING THE PETITION
State high courts have split 3–4 over whether police may conduct warrantless searches of purses worn
or held by passengers just because they have a valid
basis to stop and search the vehicle. The Supreme
Courts of Kansas, North Dakota, and Idaho treat
purses held by passengers like outer clothing. Those
courts have concluded that purses held by passengers
are not subject to search merely because police officers
may lawfully search the vehicle. But the Supreme
Court of South Dakota here joined the Supreme
Courts of Minnesota, Nebraska, and Ohio in holding
that police officers may search a purse held by a passenger as part of a lawful search of the vehicle. The
split is entrenched, and there is no benefit to further
percolation. Without this Court’s intervention, the
disagreement will persist, weakening the Fourth
Amendment’s protections and making them depend
on the accident of geography.
The question presented is important, and the case
is an ideal vehicle for resolving it. These searches
14
likely affect many individuals, as police pull over more
than 20 million motorists each year. And they go to
core Fourth Amendment protections, as the Framers
designed the Fourth Amendment to ensure that officials do not have “unbridled discretion to rummage at
will among a person’s private effects.” Gant, 556 U.S.
at 345. Yet South Dakota has claimed the ability to do
just that with passengers who are carrying their personal effects in a purse they hold, rather than in their
coat pockets. What’s more, ensuring that personal belongings are subject to equal constitutional
protections—no matter whether they are in pockets or
purses—is critical to avoiding unwarranted gender
disparities. The Fourth Amendment doesn’t contemplate subjecting women to greater governmental
intrusions than men, but that is what the Supreme
Court of South Dakota’s decision effectively does. And
the question presented is dispositive: Ms. Edwards’s
suppression motion would have been granted in
Idaho, Kansas, or North Dakota.
The South Dakota Supreme Court’s decision is
wrong. Balancing the “degree to which [the search] intrudes upon an individual’s privacy” against “the
degree to which it is needed for the promotion of legitimate governmental interests,” Houghton, 526 U.S.
at 299-300, makes clear that a lawful search of an automobile may not include a search of a purse held by
a passenger. On one side of the ledger, purses are “special containers” that hold “especially personal items
that people generally like to keep with them at all
times.” Id. at 308 (Breyer, J., concurring). On the
other side of the ledger, the government’s interest is
weaker than its interest in searching purses not near
passengers, because purses held by passengers do not
present the same concerns regarding ownership or
15
surreptitious concealment by the driver that motivated the Court in Houghton. See id. at 305-06
(majority opinion). The interests here are like a passenger’s interests in outer clothing, and the search
here was thus unlawful. See Di Re, 332 U.S. at 595.
By treating pockets differently from held purses, the
South Dakota Supreme Court contravened this
Court’s instruction that there are no “worthy” and
“unworthy” containers. See Ross, 456 U.S. at 822.
Both means of keeping passengers’ belongings with
them must be equally protected.
This Court should grant review.
I.
State high courts have divided over whether
a police officer who may lawfully search an
automobile may search a purse that a
passenger is holding.
State high courts are divided over whether the
Fourth Amendment permits a search of a purse carried by an automobile passenger when it would not
permit a search of the passenger’s body and clothing.
As Justice Breyer’s concurrence noted, the Court did
not reach the issue in Houghton. 526 U.S. at 308
(Breyer, J., concurring). Lacking the Court’s guidance,
courts have split on this important question. Three
state supreme courts follow Di Re and hold that a
purse held by a passenger is a “kind of ‘outer clothing,’” id., that officers may not search as part of the
vehicle search. Four state supreme courts disagree,
holding that a purse a passenger carries is subject to
search even though the passenger herself is not.
16
A. In three states, officers conducting an
otherwise lawful warrantless search of
an automobile may not search a purse
held by a passenger.
In Kansas, North Dakota, and Idaho, police officers may not search a passenger’s purse worn on her
person as part of their lawful warrantless search of
the vehicle.
1. In State v. Boyd, 64 P.3d 419, 427 (Kan. 2003),
the Kansas Supreme Court held that “where a passenger is told by a police officer to get out of a lawfully
stopped vehicle and in response to the officer’s order
to leave her purse in the vehicle, puts the purse down
and exits the vehicle, a subsequent search of the purse
as part of a search of the vehicle violates the passenger’s Fourth Amendment right against unreasonable
search and seizure.” Boyd was a passenger in a vehicle
that police stopped for a traffic violation. Id. at 421.
The driver consented to a search of the car. Id. Boyd
tried to take her purse with her when exiting the car,
but the police directed her to leave it in the car. Id.
After the police found a crack pipe in the car, and thus
had probable cause to search the car, the police
searched Boyd’s purse over her objection. Id. The police found crack cocaine and arrested Boyd. Id. On
appeal, the state argued that the search was lawful
because police had probable cause to search the vehicle. Id. at 423.
The Kansas Supreme Court held that the search
was unlawful. Boyd “attempted to take [her purse]
with her but was directed to leave it in the van. Under
these circumstances her purse was entitled to the
same increased protection from search and seizure as
afforded to her person.” Id. at 427. The court reasoned
17
that “[t]he heightened privacy interest and expectation in the present case is sufficient to tip the balance
from governmental interest in effective law enforcement, which outweighed the privacy interest in
Houghton where the purse was voluntarily left in the
back seat unclaimed.” Id.
The Kansas Supreme Court further explained its
approach in State v. Groshong, 135 P.3d 1186 (Kan.
2006). The court recounted that, “[r]elying on Justice
Breyer’s concurring opinion in Houghton, [it had] recognized a heightened privacy interest in purses when
they are attached to the owner” in Boyd. Id. at 1189.
Articulating the contours of the rule, the court explained that the Boyd rule is not unlimited: “[t]o avoid
subjecting a passenger’s purse to a search during the
lawful search of a vehicle, a passenger … must immediately assert a privacy interest in the purse by taking
it upon exiting the vehicle.” Id. at 1190-91.
2. The North Dakota Supreme Court articulated
the same rule in State v. Tognotti, 663 N.W.2d
642, 643 (N.D. 2003). There, the court held that “incident to a valid arrest of an occupant in a vehicle, the
arresting officer can search the contents of a nonarrested occupant’s purse, if the purse was in the vehicle
at the time of the arrest and the occupant was not instructed by the officer to leave it in the vehicle upon
exiting.” Id. By contrast, “the Fourth Amendment is
violated when an officer directs that a purse be left in
the vehicle and then proceeds to search the purse incident to the arrest of another passenger in the
vehicle.” Id. at 650. The court reasoned that “[a] purse,
like a billfold, is such a personal item that it logically
carries for its owner a heightened expectation of privacy, much like the clothing the person is wearing.”
Id. The court thus remanded for the trial court to
18
consider the “dispositive” factual question whether
the police directed the passenger to leave her purse in
the car, or whether the passenger left her purse in the
car voluntarily. Id.
3. In State v. Newsom, 979 P.2d 100, 102 (Idaho
1998), the Idaho Supreme Court held that the search
of a passenger’s purse was unlawful when the passenger had not left her purse in the car voluntarily.
There, the passenger was riding in a car that police
officers stopped for turn signal violations. Id. at 100.
Officers arrested the driver based on outstanding felony arrest warrants. Id. The passenger, who was
holding her purse on her lap, began to exit the car with
her purse before police searched the car, but police ordered her to leave her purse in the car. Id. at 100-01.
The court “conclude[d] that when the passenger left
the vehicle she was entitled to take her purse with her
and was not required” to leave it to be searched, because the “purse was entitled to as much privacy and
freedom from search and seizure as the passenger herself.” Id. at 102.
Though decided before Houghton, Newsom remains good law. The Idaho Supreme Court recently
cited both Houghton and Newsom in its discussion of
the Fourth Amendment’s automobile exception. See
State v. Maloney, 489 P.3d 847, 854 (Idaho 2021). The
court explained that “case law indicates that the automobile exception does not automatically extend to all
containers at all times associated with the vehicle.” Id.
B. In four states, a lawful warrantless
automobile search may include a search
of a purse held by a passenger.
The South Dakota Supreme Court acknowledged
the opposing view, App. 8a n.1, but instead joined the
19
Supreme Courts of Minnesota, Nebraska, and Ohio in
holding that police officers may search a purse held by
a passenger when the officers are authorized to conduct a warrantless search of the car.
1. In a 3–1 divided opinion, the South Dakota
Supreme Court concluded that even though Ms. Edwards held her purse “at all times during her
encounter with law enforcement,” her “purse was not
entitled to a heightened expectation of privacy and
was subject to the same search conditions as any other
container found inside of the vehicle that was capable
of concealing contraband.” App. 7a, 13a-14a. The court
expressly considered and rejected Justice Breyer’s
Houghton concurrence on the ground that it “blur[s]
the bright-line rule regarding searches of passenger’s
belongings and ignores the reality that passengers are
often involved in the same activity as the driver and
can easily hide incriminating evidence in their personal belongings that are on or near their person.”
App. 12a n.3. It also acknowledged several of the decisions adopting Justice Breyer’s view but did not follow
them. App. 8a n.1.
The dissent disagreed. It would have held “that
law enforcement was not authorized to search [Ms.
Edwards’s] purse.” App. 16a (Myren, J., dissenting).
“[C]onsistent with Justice Breyer’s approach in
Houghton,” and the approach of the Kansas, North
Dakota, and Idaho Supreme Courts, the dissent took
the view that “[p]urses are special containers.” Id.
(quoting Houghton, 526 U.S. at 308 (Breyer, J., concurring)).
2. The Minnesota Supreme Court also upheld a
search of a passenger’s purse as part of a vehicle
search, even though the passenger was carrying her
20
purse. See State v. Barrow, 989 N.W.2d 682, 683-84
(Minn. 2023). In that case, a police officer stopped a
car after observing lane change violations. Id. at 684.
The officer stated that he smelled marijuana, and
asked the driver and passenger to exit the car. Id. The
passenger tried to take her purse with her, but the officer directed her to leave her purse on the car, so she
placed it on the trunk, and the officer searched it. Id.
The passenger “argue[d] that the search of her purse
pursuant to the automobile exception was akin to a
search of her person, and was therefore unconstitutional under Di Re’s holding that the automobile
exception does not allow police to conduct a warrantless search of persons inside the car.” Id. at 686. The
Minnesota Supreme Court disagreed: because the
purse was “a container that was inside the car at the
time probable cause arose, and her purse could contain marijuana, the officer was permitted to search
the purse under the automobile exception.” Id. at 688.
3. The Nebraska Supreme Court has also held
that a lawful vehicle search may include a purse held
by a passenger. State v. Lang, 942 N.W.2d 388, 400
(Neb. 2020). As part of a vehicle search, the police officer in Lang instructed the driver and passenger to
leave the vehicle, and the passenger took her purse
with her when exiting. Id. at 394. The Nebraska Supreme Court held that the purse was subject to search,
because it was “a container that was inside the vehicle
when officers developed probable cause to search the
vehicle.” Id. at 400-01.
4. The Ohio Supreme Court takes the same view.
In State v. Mercier, 885 N.E.2d 942, 942 (Ohio 2008),
over a vigorous dissent, the court summarily upheld
the warrantless search of a passenger’s purse when
the passenger held it and sought to keep it with her.
21
In Mercier, the intermediate appellate court had held
that police may search a passenger’s purse when
searching the vehicle, no matter whether the passenger was holding the purse. See State v. Mercier, No. C060490, 2007 WL 1225858, at *4-5 (Ohio Ct. App. Apr.
27, 2007). Mercier, a passenger in the car, had her
purse on her lap when the vehicle was stopped, but
left her purse in the car only because the police instructed her to do so. Id. at *2. The Ohio Court of
Appeals rejected her argument that, under Houghton,
“because her purse was in her lap when [the] car was
stopped, it was ‘attached to her person,’ and, therefore, it could not have been searched in the absence of
particularized probable cause to search her person.”
Id. at *4. The Ohio Supreme Court affirmed in a 5-2
decision, also resting on Houghton. Mercier, 885
N.E.2d at 942.
Two Justices dissented. Expressly aligning with
Kansas, North Dakota, and Idaho, the dissent would
have held that the search of Mercier’s purse was analogous to a search of her person, and was thus
unlawful. Id. at 943-44 (Lanzinger, J., dissenting).
The dissent reasoned that Houghton did not directly
address the issue, because “[u]nlike in the case before
[the court], in Houghton, the purse was found in the
back seat of the car and was not, at the time of the
stop, directly connected to its owner.” Id. at 942. The
dissent thus evaluated whether the search of the
purse was “more analogous to a search of a container
or a search of her person.” Id. at 943. It concluded that
the search was analogous to a search of the passenger’s person, reasoning that “a woman (or man for that
matter) in possession of a purse, either worn or carried, has a reasonable expectation of privacy in its
contents.” Id. at 944. The dissent “reject[ed] the idea
22
that a purse is nothing more than a simple container,
subject to search at will.” Id.
C. The split is outcome-determinative, and
only this Court can resolve it.
The split is outcome-determinative. Ms. Edwards
“took her purse from her lap and placed it over her
shoulder” when she was ordered to exit the car. App.
5a. In North Dakota, Idaho, and Kansas, Ms. Edwards’s suppression motion would have come out the
other way. In those states, Ms. Edwards’s purse would
have had a heightened expectation of privacy, and the
officers’ search would have been unlawful. Thus, the
unlawfully obtained evidence would have been suppressed. See Wong Sun v. United States, 371 U.S. 471,
487-88 (1963). But because Ms. Edwards lives in
South Dakota, she was convicted of drug possession
based on evidence that officers forcibly recovered from
her purse without probable cause.
Only this Court can resolve the conflict. Indeed,
the South Dakota Supreme Court acknowledged that
other state high courts have reached the opposite result. App. 8a n.1. It rejected those courts’ reasoning,
however, and deepened the conflict. Further percolation can neither resolve the split nor help this Court
address it—further delay would only prevent the uniform application of the Fourth Amendment
nationwide. The Court should grant review.
II. The question presented is important, and
this case is an ideal vehicle for resolving it.
A. The question presented is important.
This case presents an important constitutional issue. Police officers stop millions of automobiles each
year, and officers frequently search vehicles for
23
contraband. Thus, the question whether officers may
search a purse held by a passenger is likely to arise
regularly—imperiling the constitutional rights of
thousands of vehicle passengers every year. And that
type of search implicates the core reason the Founding
generation adopted the Fourth Amendment—“the
concern about giving police officers unbridled discretion to rummage at will among a person’s private
effects.” Gant, 556 U.S. at 345. This Court’s resolution
of the question presented and reaffirmation of the
Fourth Amendment’s protections are critical.
1. Because of the frequency of traffic stops, this
type of vehicle search is a significant issue. “Police pull
over more than 50,000 drivers on a typical day.” Open
Policing Project, supra. That’s “more than 20 million
motorists every year.” Id. And “it is not uncommon for
police officers to have probable cause to believe that
contraband may be found in a stopped vehicle.” Ross,
456 U.S. at 803-04. That’s because “[p]robable cause
‘is not a high bar.’” District of Columbia v. Wesby, 583
U.S. 48, 57 (2018). Thus, police will have reason to
search many of those 20 million motorists each year.
The data bear this out. For example, in Washington State, white individuals had a search rate of 23.4
per 1,000 stops by state patrol agencies. Justin George
& Eric Sagara, How to Cut Down on Searches in Traffic Stops: Legalize Pot, The Marshall Project (June 21,
2017), https://tinyurl.com/y4mjvsk6. The search rates
for black and Hispanic individuals were even higher.
Id. Extrapolating that rate to 20 million stops would
lead to an estimate of 46,800 vehicle searches per
year. Many of those vehicles will have passengers, and
many passengers carry purses or other handbags. In
short, searches of a passenger’s purse may arise tens
of thousands of times every year.
24
2. The offensiveness of purse searches also
heightens the need for the Court’s review. A search of
a purse that a passenger holds, based solely on that
passenger’s location within the vehicle, implicates the
Fourth Amendment’s “central concern,” “the concern
about giving police officers unbridled discretion to
rummage at will among a person’s private effects.”
Gant, 556 U.S. at 345. The Framers adopted the
Fourth Amendment in response to the “general warrants and warrantless searches” in the colonies.
Chimel v. California, 395 U.S. 752, 760-61 (1969).
General warrants permitted “officers to rummage
through homes in an unrestrained search for evidence
of criminal activity” and were “reviled” by the Founding generation. Riley v. California, 573 U.S. 373, 403
(2014). These searches were “deeply felt” “abuses”
that “alienated the colonists.” Chimel, 395 U.S. at 76061. The searches were particularly offensive because
“they placed ‘the liberty of every man in the hands of
every petty officer.’” Boyd v. United States, 116 U.S.
616, 625 (1886). Indeed, the Founding generation’s opposition to these searches not only drove adoption of
the Fourth Amendment, but “helped spark the Revolution itself.” Carpenter v. United States, 585 U.S. 296,
303-04 (2018).
Searching a woman’s purse just because she is a
passenger in a suspicious person’s car is precisely the
type of rummaging at will through a person’s private
effects that drove the revolution and ultimately inspired the Fourth Amendment. The critical Fourth
Amendment interests at stake for so many Americans
are a powerful reason to grant review.
25
B. The South Dakota Supreme Court’s rule
confers greater Fourth Amendment
protections to men than women.
The South Dakota Supreme Court gave men
greater Fourth Amendment protections than women
by treating purses differently from pockets.
Historically, purses and similar handbags have
been ubiquitous. “In most cultures, and for much of
the history of the West, people have carried the tools
and ephemera of the everyday tucked more or less securely about their clothing, often into a belt or
suspended from a purse … .” Hannah Carlson, Pockets: An Intimate History of How We Keep Things Close
14 (2023). Both men and women often wore purses. Id.
at 14-15. In their early form, pockets, too, were “independent of clothes” and were accessories like purses—
they were “small bag[s].” Id. at 16.
Over time, however, fashion trends evolved and
men began to use attached pockets. Tailors started affixing pockets into men’s breeches in the 1500s. Id. at
23. At that point, pockets were like bags, attached at
the waistband and hanging freely from it. Id. Purses
became “more associated with out-of-date country
fashions,” as “a gentleman could accommodate purse,
dagger, and sword about his waist while wearing
breeches that likely contained a pocket.” Id. at 40. In
the 1700s and 1800s, pocket books and pocket cases
became popular and allowed “male wearers” to organize their effects and carry them close to their bodies.
Id. at 60-65.
Women’s clothing, by contrast, did not transition
to sewn-in pockets. Instead, women used purses or
“tie-on-pockets,” which were “pear-shaped pockets”
that “were tied around the waist and lay flat at the
26
hips,” often under women’s skirts. Id. at 66. These
pockets were large, “generally measur[ing] twelve to
twenty inches long,” but “were far less secure than the
pockets integrated into men’s suits” and were easily
lost. Id. at 67, 69. Eventually, women moved to carrying their personal effects in handbags, as designers
declined to include large, functional pockets in
women’s clothes. Id. at 120-25.
Today, this distinction persists. Women’s pockets
are smaller and less functional than men’s pockets.
Research in 2018 found that women’s jeans front pockets are 48% shorter and 6.5% narrower than men’s
jeans pockets. Jan Diehm & Amber Thomas, Pockets,
The
Pudding
(Aug.
2018),
https://pudding.cool/2018/08/pockets/. Those results controlled
for the size of the person—the jeans compared each
had the same size waistband. Id. And the pocket-size
differences result in meaningful differences as to what
men and women can carry. Id. While 95% of men’s
front jeans pockets measured fit a Samsung Galaxy
cell phone, only 20% of women’s front jeans pockets
could do so. Id. And all of the men’s jeans tested, but
only 40% of the women’s jeans, fit a wallet designed
for front pockets. Id.
These design differences have led to differences in
real-world behaviors. More men carry their personal
effects in their pockets, and more women carry their
personal effects in handbags. See Fumiko Ichikawa et
al., Where’s the Phone? A Study of Mobile Phone Location in Public Spaces, Proceedings of the 2005 2nd
International Conference on Mobile Technology, Applications and Systems (Dec. 2005). In a study of
multiple international cities, the majority of women
reported keeping their phone in a shoulder bag, while
27
the majority of men reported keeping their phone in
pant pockets. Id. at 5-6.
The Fourth Amendment does not contemplate
treating pockets and held purses differently. Justice
Breyer recognized the equivalence between pockets
and purses in his Houghton concurrence. He explained that “it would matter if a woman’s purse, like
a man’s billfold, were attached to her person. It might
then amount to a kind of ‘outer clothing,’ which under
the Court’s cases would properly receive increased
protection.” Houghton, 526 U.S. at 308 (Breyer, J.,
concurring). That is because the Constitution does not
distinguish between “worthy” and “unworthy” means
of carrying one’s belongings. Ross, 456 U.S. at 822.
And the Fourth Amendment does not protect men
more than women. See U.S. Const. amend. XIV, § 1.
Yet that is precisely what the South Dakota Supreme Court’s rule does in practice. By ruling that the
Fourth Amendment protects pockets differently than
it protects purses, the court has drawn an arbitrary
distinction whereby men’s belongings effectively receive greater protection than women’s belongings. All
effects carried on the person are entitled to Fourth
Amendment protections—regardless of how a person
carries them.
C. This case presents an ideal vehicle for
resolving the question presented.
The question presented is dispositive here. If the
Court rules in Ms. Edwards’s favor, remand would result in vacatur of her convictions. Ruling for Ms.
Edwards would result in granting her motion to suppress, since South Dakota has never argued that its
officers had a warrant or probable cause to search Ms.
Edwards’s purse based on her own conduct. See App.
28
6a. The South Dakota courts would then have to vacate her convictions for possession of a controlled
substance, obstructing a law enforcement officer, and
possession of drug paraphernalia, because all of those
convictions were based solely on the evidence recovered from the warrantless search. See id.
III. The South Dakota Supreme Court’s decision
is wrong.
Courts evaluate the reasonableness of a warrantless search “by assessing, on the one hand, the degree
to which it intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.”
Houghton, 526 U.S. at 299-300. Here, the Supreme
Courts of Kansas, North Dakota, and Idaho have it
right. A search of a purse that an automobile passenger is holding is analogous to a search of her coat
pockets, and should thus similarly be protected from
warrantless search under the Fourth Amendment.
The significant intrusion on the individual’s privacy
outweighs the lesser need to promote legitimate governmental interests.
A. On one side of the ledger, the intrusion on an
individual’s privacy is great. This type of search implicates the “central concern underlying” the Fourth
Amendment—“the concern about giving police officers
unbridled discretion to rummage at will among a person’s private effects.” Gant, 556 U.S. at 345. That
concern is just as grave when belongings are in a
purse that an individual holds as compared to coat
pockets. As numerous courts have recognized,
“[p]urses are special containers.” Houghton, 526 U.S.
at 308 (Breyer, J., concurring). “They are repositories
of especially personal items that people generally like
29
to keep with them at all times.” Id. As the North Dakota Supreme Court put it, “a purse is a special
personal container and a search of it very nearly involves the same intrusion as the search of the person
herself.” Tognotti, 663 N.W.2d at 649. A search of a
purse held by a passenger is like a search of the passenger’s outer clothing, which “constitutes a severe,
though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening,
and perhaps humiliating experience.” Houghton, 526
U.S. at 303 (quoting Terry, 392 U.S. at 24-25).
B. On the other side of the ledger, requiring a
warrant or a lawful arrest to justify searching a passenger’s purse held on her person does not hinder
legitimate governmental interests. The concerns driving the Court in Houghton do not apply here. The
Court in Houghton focused on the driver’s ability to
hide contraband in the passenger’s belongings “surreptitiously, without the passenger’s knowledge or
permission.” Id. at 305. And it warned of the “bog of
litigation” that could arise over the contested ownership of various items in the car and the uncertainty
that officers would endure if they had to “infer[] ownership.” Id. at 305-06. But both concerns lack force
when the passenger is holding the purse—ownership
is clear, and it would be difficult for a driver to surreptitiously access the purse.
C. The balance of interests weighs against permitting a warrantless search of a purse that a
passenger is holding. The “degree of intrusiveness
upon personal privacy and indeed even personal dignity” weighs against warrantless searches of a
passenger, including the passenger’s outer clothing.
Id. at 303. By contrast, a search of “an item of personal
property found in a car,” away from the passenger’s
30
person, does not have “[s]uch traumatic consequences.” Id. Here, where the passenger has kept
ahold of or is wearing her purse, the balance of interests is comparable to the assessment for a search of
her outer clothing. A purse held by a passenger is not
distinct from coat pockets in terms of the intrusiveness of a search and the privacy interests involved.
Both pockets and held purses are on the person—indeed, Ms. Edwards’s purse had to be forcibly removed
from her, App. 5a—and both hold personal effects. As
the Kansas Supreme Court correctly observed, that
“heightened privacy interest and expectation” are
“sufficient to tip the balance from governmental interest in effective law enforcement, which outweighed
the privacy interest in Houghton where the purse was
voluntarily left in the back seat unclaimed.” Boyd, 64
P.3d at 427. “Under these circumstances [a passenger’s] purse was entitled to the same increased
protection from search and seizure as afforded to her
person.” Id.
There are no countervailing law enforcement interests that could support a search. The test is
administrable: police officers can apply the same
Fourth Amendment standards that they apply in
other contexts—like when they want to search an individual’s coat pockets. See Di Re, 332 U.S. at 595. The
concern that treating purses like pockets will hinder
officers’ ability to search does not outweigh the individual privacy interest. To the contrary, the Founders
“designed our Constitution to place obstacles in the
way of a too permeating police surveillance, which
they seemed to think was a greater danger to a free
people than the escape of some criminals from punishment.” Id. Thus, just as officers conducting a lawful
warrantless automobile search may not command a
31
passenger to remove her coat and let them search it,
see id., officers likewise may not command a passenger to remove her purse and let them search it.
Holding otherwise would violate this Court’s instruction that the Constitution does not recognize
“worthy” and “unworthy” containers. Ross, 456 U.S. at
822. Where a passenger is holding her purse, as here,
the purse is a repository of personal effects analogous
to coat pockets. Just as men who carry their effects in
pockets are entitled to Fourth Amendment protections
from warrantless searches, women who carry their effects in purses may “claim an equal right to conceal
[their] possessions from official inspection.” Id. Thus,
as the North Dakota Supreme Court has correctly recognized, there is no constitutional justification for
treating one container on one’s person (a purse) differently from another (a pocket). A purse, like a pocket,
“carries for its owner a heightened expectation of privacy, much like the clothing the person is wearing.”
Tognotti, 663 N.W.2d at 650.
*
*
*
State high courts have split 3–4 on an important
constitutional question. Getting the answer right is
crucial to protect the constitutional rights of the millions of Americans who ride in cars. The Court should
grant review.
32
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted.
Conor Duffy
DUFFY LAW FIRM
1321 Mt. Rushmore Rd.
Rapid City, SD 57701
Shay Dvoretzky
Counsel of Record
Parker Rider-Longmaid
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
Nicole Welindt
1440 New York Ave. NW
SKADDEN, ARPS, SLATE, Washington, DC 20005
MEAGHER & FLOM LLP 202-371-7000
shay.dvoretzky@skadden.com
525 University Ave.
Palo Alto, CA 94301
Raza Rasheed
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
2000 Ave. of the Stars,
Ste. 200N
Los Angeles, CA 90067
Counsel for Petitioner
February 10, 2025
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