Petitioners Brief — United States v. Chadwick

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Jit, . Ss.

SILER

Sup: ine Ans, — r 11 — 0

| JAN 27 1977

No. 75-1721

MICHAEL pe

Iu the Supreme Court of the United States

Ocroner Term, 1976

Unirev States or AMERICA, PETITIONER

Josxyn A. CHADWIOK, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

— —

— — — —

DANIEL M. FRIEDMAN,

Acting Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

KENNETH S. GELLER,

Assistant to the Solicitor General,

SIDNEY M. GLAZER,

MICHAEL W. FARRELL,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

me i

Opinions below

Jurisdiction

INDEX

—— —— te ttt ete LL

Question presented nn

Constitutional and statutory provisions involved

Statement

Argument

II.

—f— M' : 2au—˙«)bn

Introduction and summary

A warrant is not required to make a probable

cause search of a container that has been law-

fully seized in a public plactce

A. Searches without warrants are not pre-

sumptively unreasonable under the Fourth

The historical background of the

Fourth Amendment suggests that

searches conducted without a warrant

were not equated with unreasonable

Evidence of events contemporaneous

with the adoption of the Constitution

indicates that the Framers were con-

cerned with general warrants rather

than warrantless searches and did not

intend to alter the settled historical dis-

tinction between warrantless searches

of buildings and of other places

This Court has repeatedly acknowl-

edged the distinction between warrant-

less searches of the home and of areas

of lesser expectation of privacy ------

For purposes of the warrant require-

ment, there is no persuasive reason to

distinguish between automobiles and

other movable chattels that have been

validly seized in public

Page

s “none =

ii iii

Page Page

B. Even if the Court were to adopt a pre- Cases (continued) :

2. ao Chamber, Merony 90 US... 8 1.9, 98 38

‘

. | Chapman v. United States, 365 U.S, 610 33

on probable cause to believe that it con- Chimel v. California, 395 U. 75ũ 2 18, 14, 61, 52, 53.

tained contraband. ...........<... cs. 46 54, 56,57

2. A warrant was unnecessary to search Coolidge v. New Hampshire, 403 U.S. 443 8. 9. 11, 13. 15,

the footlocker. since it had been seized 33, 34. 46, 47. 49

3 Cooper v. California, 386 U.S. 68. 9.48.87

oon 20 ee eee 58 Cupp v. Murphy, 412 U.S. 29911 ; 53

Draper v. United States, 358 U.S. 37 54

Dyke v. Taylor Implement Co., 391 U.S. 21 55

Entick v. Carrington, 19 How. St. Tr. 1030, 95

Se SS 17, 20,21

CITATIONS Frank v. Maryland, 359 U.S. 9003 16, 23

8 G. M. Leasing Corp. v. United States, No. 75-235,

; decided January 12, 19777777 30, 32, 34

Abel v. United States, 362 U.S. 217 — 49.51 Go-Bart Importing Co. v. United States, 282 U.S. 344.16, 51

Agnello v. United States. 269 U.S. 20 34 Harris v. United States, 381 U.S. 145 _-_-- .--- 16, 51, 52

N — Henry v. United States, 361 U.S. 9 26

buen» ar Pire Sed aa ee

Bivens v. Six Unknown Named Agents of Fed- Husty v. United States, 282 U.S. 6444 35

eral Bureau of Narcotics, 408 U.S. 888 45 Jackson, Ex parte, 96 U.S. 72222222 31

Boyd v. United States, 116 U.S. 61ùũ?◻ͤ4c 16, 20, 47 Johnson v. United States, 333 U.S. 10 30

Brinegar v. United States, 388 U.S. 160 35 Jones v. United States, 357 U.S. 499393 29, 33

Brown v. Illinois. 422 U.S. 590 --..---.----.------- 5 Katz v. United States, 389 U.S. 347 12, 15, 29, 30, 32. 33

Cady v. Dombrowski, 418 U.S. 433 33, 34, 35, 38, 49 Ker v. California, 374 U.S. 333 51

Camara v. Municipal Court. 387 U.S. 523 32, 84 Leach v. Money, 19 How. St. Tr. 1001, 97 Eng.

Cardwell v. Lewis, 417 U.S. 5888 3 34, 35, 36 11115 20

Carroll v. United States, 267 U.S. 182 ... 35, 36, 40, 42, 47 Mancusi v. De Forte, 392 U.S. 364 .........-.-..-- 30

Page Page

Conse (continued) : Cases (continued) :

Mereus v. Search Werrent, 867 U.S. 717. 16, 30 United States v. Dinapoli, 519 F. 2d 1b 49

Marron v. United States. 275 U.S. 192. 45, 51,52 | United States v. Eatherton, 519 F. 2d 603, certiorari

McDonald v. United States, 335 U.S. 4111 33. 34 11. 1 5. 54

Monroe v. Pape, 365 U.S. 16 „ 45 United States v. Edmonds, 585 F. 2. d 714 54

Olmstead v. United States. 277 U.S. 4338 30 United States v. Edwards. 415 U.S. 800 12. 39. 49, 56. 57

Preston v. United States. 376 U.S. 364 43, 55 United States v. Evans, 481 F. 2d 990 40

Rios v. United States, 364 U.S. 258 u 33 United States v. Francolino, 367 F. 2d 1013, certio-

Scher v. United States, 305 U.S. 2811 36.38 6 eae

Schmerber v. California, 384 U.S. 757 -.....------ 31 aa

See v. City of Seattle, 387 U.S. 541 ......-.-..----.- 31 United States v. Fulero, 498 F. 2d 7j ‘

29222 üͤĩ * United States v. Giles, 536 F. 2d 136 54

Silverman v. United States, 365 U.S. 505 30 United States v. Issod, 508 F. 2d 990, certiorari

Silverthorne Lumber Co. v. United States re intel 40

261 U.S. 385 --.....-.------------------------ 30 United States v. Jeffers, 342 U.S. 433 30, 33, 34

South Dakota v. Opperman, No. 75-76, decided United States v. Kirschenblatt, 16 F. 2d 202 52

299 — — — 5, 9, 36 United States v. Lefkowitz, 286 U.S. 42 51

Stanford v. Texas, 379 U.S. 478 — g 16, 22, 43 United States v. Martinez-Fuerte, No. 74-1560,

Stoner v. California, 376 U.S. 43333 30, 33, 34 decided July 6, 1978 1 30, 32, 36

Terry v. Ohio, 392 U.S. 1 ll! . 9. 12 United States v. Mehciz, 437 F. 2d 145, certiorari

Texas v. White, 428 U.S. 677 eet 35, 38 denied, 402 U.S. 974 --..-------...----------- 54

Trupiano v. United States, 334 U.S. 69 . United States v. Ortiz, 422 U.S. 891 -----.--------- 36

United States v. Brattle. 510 F. 2d 776 54 | United States v. Rabinowitz, 339 U.S. 565 16, 51. 52

United States v. Brignoni- Ponce, 422 U.S. 878 12 United States v. Race, 529 F. 2d 12— 5

United States v. Bronstein, 521 F. 2d 459, certiorari United States v. Ramsey, No. 76-167, certiorari

deed, 6 90 06 eS 3, 38 | granted, October 4 —— =

United States v. Ciotti, 469 F. 2d 1204, vacated on United States v. Robinson, 414 U.S. 218 Sa

other grounds, 414, U.S. 1161 -........-.....- oe United States v. Schleis, 543 F. 2d 59, pending on

United States v. DeLeo, 422 F. 2d 487, certiorari petition for a writ of certiorari, No. 76-5722... 54

denied, 397 U.S. 1087 53, 56 United States v. Solis, 266 F. 2d 8500000 3

Constitutions and statutes:

Page

Cases (continued) :

United States v. Soriano. 497 F. 2d 147, pending on

petition for a writ of certiorari, No. 76-5148 40

United States v. United States District Court, 407

. 15, 29-30

United States v. Van Leeuwen, 397 U.S. 249 31

United States v. Ventresca, 380 U.S. 12 45

United States v. Watson, 423 U.S. 411 14, 25, 45, 49

United States v. Zaicek, 519 F. 2d 412 49

Vale v. Louisiana, 399 U.S. 00h00 31

Warden v. Hayden, 387 U.S. 294 47

White v. State, 521 S.W. 2d 2588 38

Wilkes v. Wood, 19 How. St. Tr. 1153, 98 Eng.

1 K 19

Were. 12

Wyman v. James. 400 U.S. 309 SE ls te wis te 80

United States Constitution, Fourth Amendment passim

1 Schwartz, The Bill of Rights: A Documentary

History (1971):

Delaware Declaration of Rights, § 17 (1776)

Maryland Declaration of Rights, Art. XXIII

Massachusetts Declaration of Rights, Pt. 1, Art.

pi Pe ey ee ee

New Hampshire Bill of Rights, Art. XIX (1783)

North Carolina Declaration of Rights, Art. XI

/ FRE RES OO TN

—— m

Vermont Declaration of Rights, Art. XI (1777)

Virginia Declaration of Rights, Art. 10 (1776)

RSS 8 RF 8 8

— ee err

vii

Kaplan, Search and Seizure: A No-Man’s Land in the

Page

Constitutions and statutes (continued) :

Act of March 3, 1815, 3 Stat. 232. Section 2 42

Act of July 18, 1866, 14 Stat. 178, Section 83 42

FR RE .. 41

IX ———— „ 32

re.. 32

19 U.S.C. 482 (Rev. Stat. § 3061)))77)) / 42

rr 4

21 U.S. C. 8 — FFE EBA n. 4

21 U.S.C. 8811¹ůih 444» 48

c 2

21 U.S.C. 861i () s) N 48

re 48

3. — 49

1 —B³ webekwalies 49

, oa cease 44

Miscellaneous :

1 Annals of Congress 438 (1789

Amsterdam, Perspectives On The Fourth Amend-

ment, 58 Minn. L. Rev. 349 (1974) __.-.-------

Barrett, Personal Rights, Property Rights, And The

Fourth Amendment, 1960 Sup. Ct. Rev. 48 18

3 Churchill, A History Of The English-Speaking

Peoples—The Age of Revolution (1957) 19

1 Cong. Deb. 783 (Gales and Seaton ed. 1834 27

Fraenkel, Concerning Searches and Seizures, 34

Harv. L. Rev. 361 (192177 18, 24, 28

Criminal Law, 49 Calif. L. Rev. 474 (1961) -.. 17, 18

viii

Page

Miscellaneous (continued) :

La Fave, “Case-By-Case Adjudication” Versus

“Standardized Procedures”: The Robinson

Dilemma, 1974 Sup. Ct. Rev. 1277 54

Landynski. Search and Seizure and the Supreme

„ W 16, 23

Lasson. The History and Development of the Fourth

Amendment to the United States Constitution

NN hace et et a 17. 18, 22, 26, 28, 42

1 Letters and Other Writings of James Madison

r T 27

2 Legal Papers of John Adams (Wroth and Zobel

// ON is PERE ren SO 22

National Motor Freight Classification, I. C. C. NMF

e 38

Taylor, Two Studies in Constitutional Interpretation

EPP 8 16, 24, 25, 26, 50

Uniform Freight Classification 12, I. C. C. 8, Rule 2,

— —— 38

In the Supreme Court of the United States

Ocroner Term, 1976

No. 75-1721

Unrrev States or AMERICA, PETITIONER

Joskyn A. CHADWICK, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-30a)

is reported at 532 F. 2d 773. The opinion and supplemental

opinion of the district court (Pet. App. 32a-63a) are re-

ported at 393 F. Supp. 763.

JURISDICTION

The judgment of the court of appeals (Pet. App. 3la)

was entered on March 29, 1976. On A, il 19, 1976, Mr.

Justice Brennan extended the time in which to file a peti-

tion for a writ of certiorari to and including May 28, 1976.

The petition was filed on May 26, 1976, and was granted

on October 4, 1976 (A. 83). The jurisdiction of this Court

rests upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a search warrant is required before federal

agents may open a locked footlocker that is properly in

(1)

their possession and that they have probable cause to be-

lieve contains contraband.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitu-

tion 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, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

21 U.S.C. 881(a) provides in part:

The following shall he subject to forfeiture to the

United States and no property right shall exist in

them:

(1) All controlled substances which have been

manufactured, distributed, dispensed, or acquired in

violation of this subchapter.

(3) All property which is used, or intended for use,

as a container for property described in paragraph

(1) or (2).

STATEMENT

1. On May 8, 1973, Amtrak railroad officials informed

federal narcotics agents in San Diego, California, that re-

spondents Gregory Machado and Bridget Leary had loaded

a brown trunk or footlocker onto a train bound for Boston,

Massachusetts (Pet. App. 34a) and that the officials be-

lieved the footlocker to contain “a large quantity of mari-

huana” (A. 53). The basis for this belief was that the

footlocker was leaking taleum powder, which is often used

to mask the odor of controlled substances such as mari-

juana or hashish (A. 15), that the footlocker had an unusual

weight for its size (A. 17), and that Machado matched a

profile used by the railroad to spot drug traffickers (Pet.

App. 34a). The federal agents relayed this information to

their counterparts in Boston.

The train arrived at South Station in Boston on the

evening of May 10, 1973, and federal agents met it at the

station. The agents saw Machado make a telephone call

after his arrival, but they were unable to see the number

called or to overhear the conversation (Pet. App. 35a).

They also observed the footlocker as it was removed from

the train, placed on a baggage cart, and taken to the station

area, where it was claimed by Mach, do and Leary. The

two then placed the trunk on the floor nearby their suitcases

and sat down on it (Pet. App. 3a).

The agents confirmed their suspicions by having a dog

trained to recognize the smell of contraband substances

approach the footlocker.“ The dog “alerted” to the foot-

locker by scratching on it, indicating that a controlled sub-

stance was inside. The agents did not have the dog sniff

the suitcases (Pet. App. 4a, 35a).

Respondent Joseph Chadwick soon arrived at the station

in an automobile. After talking with Machado and Leary

for a moment, Chadwick left the terminal, went outside to

‘Investigation with the aid of a trained dog is permissible

under the Fourth Amendment. United States v. Solis, 536 F. 2d

880 (C.A. 9); United States v. Race, 529 F. 2d 12 (C.A. 1);

United States v. Bronstein, 521 F. 2d 459 (C. A. 2), certiorari

denied, 424 U.S. 918; United States v. Fulero, 498 F. 2d 748

(C.A. D.C.).

the street, and opened the trunk of the car. With the as-

sistance of a porter, Leary and Machado took their belong-

ings to Chadwick’s car and loaded the footlocker and one

suitease into the trunk; Leary took the other suitcase and

entered the front seat (Pet. App. 35a, 52a-53a). While the

automobile trunk was still open and Chadwick and Machado

were standing beside it, the agents arrested all three re-

spondents. A search of the two men produced a small

quantity of marijuana on Chadwick and a key to and re-

ceipts and documents of ownership of the footlocker on

Machado. Respondents were then taken to the agents’ office

in the federal building in Boston (A. 43). The footlocker

and the two suitcases were also taken to the agents’ office,

where, approximately 90 minutes after the arrests and

seizure, they were opened. Inside the footlocker and both

suitcases the agents found substantial amounts of mari.

juana (Pet. App. 5a, 7a, 8a, 35a-36a).

2. On November 2, 1973, an indictment returned in the

United States District Court for the District of Massachu-

setts charged respondents Machado, Leary and Chadwick

with possession of marijuana with intent to distribute it,

in violation of 21 U.S.C. 841(a)(1), and with conspiracy to

commit that crime, in violation of 21 U.S.C. 846. Respond-

ents filed pretrial motions to suppress incriminating state.

ments made by Chadwick after his arrest and the evidence

obtained from the footlocker and the suitcases. In reply,

the government argued that the search of the suitcases was

a proper inventory inspection, necessary to protect agents

against charges that they had stolen property that had been

seized. It justified the opening of the footlocker both as a

search incident to an arrest and as a search based upon the

“automobile exception” to the Warrant Clause of the

Fourth Amendment. The district court rejected each of

these arguments and suppressed the evidence obtained from

the searches (Pet. App. 45a-5la, 54a-dla). It also sup-

pressed Chadwick’s statements, holding that there had not

been probable cause to arrest him and that the statements

were tainted fruit of the illegal arrest (id. at 37a-44a,

62a-63a).

3. A divided court of appeals affirmed the suppression of

the marijuana found in the footlocker.? The court concluded

that the footlocker had been properly seized (Pet. App.

17a, 19a). It then inquired whether it was reasonable to

open it. Beginning with the premise that warrantless

searches are presumptively unlawful in the absence of one

of a few narrow circumstances, the court stated that It jhe

question“ * * is whether [this] warrantless search fits

* The court of appeals also affirmed the district court’s sup-

pression of respondent Chadwick’s statements and the mari-

juana found in the suitcases. We do not agree that there was

not probable cause to arrest Chadwick or that his admissions,

after receiving Miranda warnings (A. 30), were necessarily

the product of his allegedly illegal arrest (see Brown v. Illinois,

422 U.S. 590), but we did not present these as questions for

this Court because they appear to involve only the application

of settled principles to particular facts. As to the opening of the

suitcases, we believe that under many circumstances it is

reasonable to inspect personal belongings discovered near a

person at the time of his arrest in a public place, a proposition

with which the court of appeals has agreed. See Pet. App. 23a;

United States v. Eatherton, 519 F. 2d 608 (C.A. 1), certiorari

denied, 423 U.S. 987. In the present case, however, the

agents did not have probable cause to believe that the suit-

cases contained contraband, and the only justification offered

in the court of appeals for the inspection was the agents’

desire to “inventory” their contents, a justification that pre-

sents problems distinct from those concerning the search of

the footlocker on probable cause. See South Dakota v. Opper-

man, No. 75-76, decided July 6, 1976; United States v. Friesen,

C.A. 9, No. 75-1199, decided November 12, 1976. Under these

circumstances, we did not seek review of the judgment of the

court of appeals insofar as it affirmed the district court’s sup-

pression of the marijuana seized from the suitcases.

within one of the exceptions to the constitutional require-

ment of a warrant” (id. at 8a). It concluded that it did not.

The “automobile exception” did not control, the court

held, because the seizure of the footlocker occurred just

after it had been deposited in the parked car’s trunk and

before any effort had been made to drive the car away. In

these circumstances, the car “was nothing more than a

platform or resting place for the footlocker,” and the court

perceived no reason “why the footlocker’s placement in the

car trunk should make it any more searchable than if the

arrest had occurred in the station area” (id. at 10a).

The court also held thet the opening of the footlocker

could not be justified as incident to the arrest of respond-

ents. Noting that the trunk was securely locked and

weighed approximately 200 pounds, the court held that the

trunk was not “in any meaningful sense * * under [re-

spondent's] immediate control” at the time of their arrest,

because they could not have either quickly removed it or

reached inside it to destroy evidence or obtain weapons

(id. at 15a).

Finally, the court rejected the argument that movable

containers, such as footlockers, that are properly seized in a

publie place, should be treated like automobiles and should

be subject to search, without a warrant, if probable cause

exists to believe that they contain evidence of a crime. The

court conceded that “baggage or goods in transit present

some of the same characteristics as automobiles. Unless

immobilized, such items may disappear before a warrant

is obtained” (Pet. App. 17a). Expressly declining to follow

other courts of appeals in this regard, however, the court

refused to permit the warrantless search of the footlocker.

The court believed that a rule allowing the search of such

belongings on probable cause has not “received sufficient

recognition by the Supreme Court outside the automobile

area, or generally, for us to recognize it as a valid excep-

tion to the fourth amendment warrant requirement” (ibid.).

It concluded that “[{i]f an exception of this character is to

be translated to an entirely different class of objects, we

think the Supreme Court should make the judgment” (id.

at 18a-19a).

The dissenting judge, aligning himself with other courts

that the majority had declined to follow, argued that the

opening of the footlocker was proper once “there was prob.

able cause to believe that it contained contraband and was

being used in committing the offense” (Pet. App. 29a). In

his view, “the principles which control the right of an officer

to arrest without a warrant a person who is committing a

felony in his presence in a public place should also permit

the officer to open a suitcase, a footlocker or other con

tainer which he has probable cause to believe is being used

to commit the offense in his presence and to seize the

contraband therein” (id. at 29a-30a; footnote omitted).

ARGUMENT

I. INTRODUCTION AND SUMMARY

The federal narcotics agents who arrested respondents

at South Station on the evening of May 10, 1973, had prob-

able cause to believe that the footlocker in respondents’

possession contained a controlled substance. Their seizure

of the footlocker without a warrant, as the court of appeals

agreed, was unquestionably reasonable under the circum-

stances. The court held, however, that, without regard to

whether the agents’ conduct in searching the footlocker

immediately upon its removal to their offices was similarly

reasonable, the search violated the Fourth Amendment be-

cause it did not fall within one of “a few specifically estab-

lished and well-delineated exceptions” to the constitutional

requirement of a warrant.

This case thus raises once again an issue that has

sparked the “conflict that has been so notable in this Court’s

attempts over a hundred years to develop a coherent body

of Fourth Amendment law” (Coolidge v. New Hampshire,

403 U.S. 443, 474). This conflict has been “caused by dis-

agreement over the importance of requiring law enforce-

ment officers to secure warrants” (ibid.). The underlying

basis of that disa; reement was summarized by Mr. Justice

Stewart in Cool*.ge (id. at 474-475; footnote omitted) :

Some have argued that a determination by a magistrate

of probable cause as a precondition of any search or

seizure is so essential that the Fourth Amendment is

violated whenever the police might reasonably have

obtained a warrant but failed to do so. Others have

argued with equal force that a test of reasonableness,

applied after the fact of search or seizure when the

police attempt to introduce the fruits in evidence,

affords ample safeguard for the rights in question, so

that “[t}he relevant test is not whether it is reason-

able to procure a search warrant, but whether the

search was reasonable.”

Both sides to the controversy appear to recognize a

distinction between searches and seizures that take

place on a man’s property—his home or office—and

those carried out elsewhere. It is accepted, at least as

a matter of principle, that a search or seizure carried

out on a suspect’s premises without a warrant is per se

unreasonable, unless the police can show that it falls

within one of a carefully defined set of exceptions

based on the presence of “exigent circumstances.” As

to other kinds of intrusions, however, there has been

disagreement about the basic rules to be applied, as

our cases concerning automobile searches, electronic

surveillance, street searches and administrative

searches make clear.

This case (unlike Coolidge) does not involve “a search

or seizure carried out on a suspect’s premises” and there-

fore does not implicate the “accepted * * * principle, that

[such] a search or seizure * * * without a warrant is per se

unreasonable, unless the police can show that it falls within

one of a carefully defined set of exceptions oased on the

presence of ‘exigent cireumstances’” (403 U.S. at 474-475).

Rather, it involves the kind of search and seizure with

regard to which there has been uncertainty and disagree-

ment “about the basic rules to be applied” (id. at 475).

A. Our primary submission is that the guiding standard

of the Fourth Amendment is reasonableness (see South

Dakota v. Opperman, No. 75-76, decided July 6, 1976, slip

op. 5-6) and that not all interferences with a person’s

liberty or privacy are of equal magnitude or demand equal

protection. Whether a search or seizure is reasonable within

the meaning of the Fourth Amendment must depend “upon

the facts and circumstances of each case” (Cooper v. Cali-

fornia, 386 U.S. 58, 59) and “the context in which [the

Fourth Amendment right] is asserted” (Terry v. Ohio, 392

U.S. 1, 9). Each governmental intrusion must be tested both

by its justification—which generally will be probable cause

to believe that contraband or evidence of the commission

of a criminal offense will be found in the area searched—

and by the strength of the privacy interests invaded by th.

search.

In making this argument, we are not disputing what “is

by now axiomatiel,] that the Fourth Amendment's pro-

scription of ‘unreasonable searches and seizures’ is to be

read in conjunction with its command that ‘no Warrants

shall issue, but upon probable cause“ ( Almeida-Sanchez

v. United States, 413 U.S. 266, 277 (Powell, J., concurring) ),

nor are we denying that both the concept of probable cause

and the presence or absence of a warrant must be consid-

ered as hearing on the reasonableness of a search. We do

contend, however, that not all warrantless searches are

unreasonable per se merely because a warrant could have

been but was not obtained. Whether a warrantless search

or seizure should be deemed presumptively unreasonable

must depend upon a discriminating appraisal of whether

the particular privacy interest at stake is sufficiently im-

portant that any intrusion must be justified not only by

probable cause but also by a determination of probable

cause by a neutral and detached magistrate in advance of

the search.

B. This view finds support both in the text of the Fourth

Amendment, which secures “persons, houses, papers, and

effects, against unreasonable searches and seizures * * *,”

and in its historical underpinnings. While the Warrant

Clause of the Amendment ensures that warrants shall not

issue except upon probable cause and the satisfaction of a

number of procedural requisites, the historical evidence

indicates that that provision was not intended by the

Framers to alter the plain meaning of the initial clause

or to render every search undertaken without a warrant

unreasonable in the absence of exigent circumstances.

Indeed, the relevant “legislative history” suggests that the

primary, if not the sole, purpose of the Fourth Amendment

was to prohibit the use of so-called “general warrants”

rather than to prohibit warrantless searches, that the initial

drafts of the Amendment accomplished this purpose and

nothing more, and that the language ultimately adopted

may have been the result of oversight.

It is not surprising that the Congress that wrote the

Fourth Amendment was more troubled by the evils of

searches backed by defective warrants than by searches

without warrants. The Framers’ prime concern was with

the search of the home. Although a warrant had always

been necessary for such entries, the requirement had been

abused. The Amendment was the product of the recent

experience with general warrants, under which entries into

and rummaging of the home had been authorized and exe

cuted by the King’s agents without probable cause to be-

lieve that a crime had been committed or that evidence

would be found therein. Such warrants were eventually

condemned by the English courts and thereafter by Parlia-

ment, and it was the intent of the Framers to write that

condemnation into the Constitution.

Warrantless searches, on the other hand, evolved in an

entirely different historical context and led to none of the

same abuses. Such searches occurred cutside the dwelling,

so that the privacy interest was significantly less, and their

victims ordinarily were those who had been caught in the

act of committing a crime or were the objects of hue and

ery or an arrest warrant. Accordingly, it was early con-

cluded that the privacy of an individual! at the time of a

search incident to an arrest was sufficiently protected by

the requirement for probable cause underlying the arrest.

The lawful restraint and incidental search were not con-

sidered to entail the kind of wholesale and wide-ranging

invasion of privacy for which a warrant requirement in

connection with a home was considered appropriate, and

the Framers were instead content to leave such searches to

the test of reasonableness.

C. Although not expressly articulated, this analysis per-

vades the Court’s decisions and explains the tensions in the

Court’s Fourth Amendment jurisprudence to which Mr.

Justice Stewart adverted in Coolidge. The Court has recog-

nized that the conflicting interests of the individual to he

free of unjustified searches and seizures and of society to

apprehend and punish those suspected of crime should be

accommodated by strict enforcement of the requirement of

probable cause, and that only in those privacy areas “at

the core of the Fourth Amendment” (Wolf v. Colorado,

338 U.S. 25, 27)—areas in which, both for historical and

practical reasons, antecedent judicial scrutiny contributes

substantial protection te the privacy right—should the

determination of reasonableiecss be inextricably bound with

the requirement of a warrant. In other cases, “the Court

[has] held the test to be, not whether it was reasonable to

procure a search warrant, but whether the search itself was

reasonable * * *.” United States v. Edwards, 415 U.S. 800,

807.

Thus, the Court has identified certain contexts, primarily

the search of homes, offices, or private communications, in

which the intrusion so impinges upon an individual’s ex-

pectation of privacy that a warrantless search or seizure,

even upon probable cause, is considered unreasonable per

se “subject only to a few specifically established and well-

delineated exceptions” (Katz v. United States, 389 U.S. 347,

357). In contexts in which core privacy interests are not

similarly implicated, such as the search of an automobile

on a public street, the reasonableness of the intrusion has

been held to depend solely upon the sufficiency of the justi-

fication, i. e., the existence of probable cause, rather than

upon the presence or absence of a warrant (see e..

Chambers v. Maroney, 399 U.S. 42). And yet other types

of searches and seizures have been considered sufficiently

limited in intrusiveness that their reasonableness not only

does not depend upon procurement of a warrant but may

rest on suspicion not zmounting to probable cause (see,

e.g., United States v. Brignoni-Ponce, 422 U.S. 873; Terry

v. Ohio, supra).

D. Application of this calculus to the facts of the present

case demonstrates the reasonableness of the agents’ con-

duct. The agents did not search a home, a place of business,

or similar areas-—those places for which a warrant his-

torically has been required and for which prior resort to a

magistrate would assist greatly in the minimization of the

intrusion. Nor did they search personal effects that could

be found only by entering private premises (see, ¢.g.,

Coolidge v. New Hampshire, supra; Chimel v. California,

395 U.S. 752). Nor, lastly, was the search an invasion of

a person’s private thoughts or communications, a “core”

privacy interest as to which e locus of the intrusion may

fairly be deemed irrelevant.

Rather, the agents searched a movable container that

they had probable cause to believe contained contraband

and that they encountered in a publie place under circum-

stances recognized by the court of appeals to justify seizing

it forthwith. Once that lawful intrusion had occurred, re-

spondents’ privacy interest in the contents of the footlocker

had diminished to the point that a further intrusion, on

probable cause, should not be held to require the prior

interposition of a magistrate. As this Court stated in

Chambers v. Maroney, supra, 399 U.S. at 51-52, to insist

upon a search warrant in such circumstances as a necessary

ingredient of reasonableness would be to demand precise

and wholly unworkable calculations as to what constitutes

the “greater” and what the “lesser” intrusion. The value

to whatever privacy interest respondents retained in the

footlocker that would have been derived from prior judicial

approval of the search in this case was insignificant in view

of the precisely defined contours of the search.

E. Finally, respondents’ privacy interests in their per-

sonal effects was further substantially reduced by the fact

that they were under arrest at the time of the search. As

Mr. Justice Powell observed in United States v. Robinson,

414 U.S. 218, 237-238 (footnotes omitted), “a valid arrest

justifies a full search of the person, even if that search is

not narrowly limited by the twin rationales of seizing evi-

dence and disarming the arrestee. The search incident to

arrest is reasonable under the Fourth Amendment because

the privacy interest protected by that constitutional guar-

antee is legitimately abated by the fact of arrest.” Since

respondents had already suffered the “serious personal

intrusion” of an arrest (United States v. Watson, 423 U.S.

411, 428 (Powell, J., concurring) ), their legitimate expecta-

tion of freedom from governmental interference with the

footlocker formerly in their possession was insufficient to

create an inhibition upon a search of the footlocker on

probable cause that could only be removed by the ante-

cedent scrutiny of a magistrate.

While the footlocker may not have been under respond-

ents’ “immediate control” (Chimel v. California, supra,

395 U.S. at 763) at the moment of their arrest, that restric-

tion on the scope of a search incident to arrest developed in

response to the search of houses or other high-privacy

areas conducted without either probable cause or a warrant

and based solely on the fortuity of the arrest in that loca-

tion. It has little relevance, and should have no application,

to a search of the belongings of a person who has been

arrested in public, where probable cause exists to believe

the chattel contains contraband or evidence of a c me re-

lated to the arrest.

F. In sum, the rule we urge would provide protection

wholly commensurate with the Fourth Amendment inter-

ests involved. Searches and seizures that invade areas in

which an individual places the greatest expectation of

privacy would be presumptively unreasonable in the ab-

sence of probable cause and a warrant. Other intrusions, in

which the privacy expectation is less and in which a war-

rant has relatively little useful role to play, would satisfy

the Fourth Amendment if they were justified by probable

cause and were otherwise reasonable. In every case the

subject of the search would have the opportunity for a

determination of probable cause by a neutral and detached

judicial officer; moreover, law enforcement officers would

retain substantial incentives to seek such judicial scrutiny

in advance of the search because of the greater deference

given to findings of probable cause when a warrant has

been obtained. United States v. Ventresca, 380 U.S. 102,

106; Aguilar v. Texas, 378 U.S. 108, 111.

II. A WARRANT IS NOT REQUIRED TO MAKE A

PROBABLE CAUSE SEARCH OF A CONTAINER

THAT HAS BEEN LAWFULLY SEIZED IN A

PUBLIC PLACE

A. SEARCHES WITHOUT WARRANTS ARE NOT PRESUMP-

TIVELY UNREASONABLE UNDER THE FourtH AMEND-

MENT

The Fourth Amendment imposes two separate, although

related, limitations upon searches and seizures. The first

cause of the Amendment “is general and forbids every

search that is unreasonable” (Go-Bart Importing Co. v.

United States, 282 U.S. 344, 357); the second clause places

a number of restrictions upon the issuance and character

of warrants. Although the Amendment itself does not sug-

gest the interrelation between the two clauses, the Court

has stated on a number of occasions that “searches con-

ducted 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, supra, 389 U.S. at 357. See also United States v.

United States District Court, 407 U.S. 297, 314-321; Cool.

idge v. New Hampshire, supra, 403 U.S. at 454-455. It was

on this statement that the court of appeals relied in uphold-

ing the district court’s suppression of the evidence seized

from respondents’ footlocker.

We submit that the conclusion of the court of appeals

was erroneous. History provides no indication that the

proponents of the Fourth Amendment equated warrantless

searches and seizures occurring outside the privacy of the

home with unreasonable searches and seizures. Nor has any

decision of this Court applied a presumptive warrant re-

quirement in a context other than a search of the home or

other “core” area of privacy. On the contrary, the search of

the footlocker in this case is constitutionally indistinguish-

able from the warrantless search of an automobile that has

been seized on a public street, the reasonableness of

which has repeatedly been upheld if based on probable

cause.

1. The historical background of the Fourth Amendment

suggests that searches conducted without a warrant

were not equated with unreasonable searches

The Fourth Amendment’s proscription of “unreasonable

searches and seizures” must be read in light of “the history

that gave rise to the words”—a history of “abuses so

deeply felt by the Colonies as to be one of the potent

causes of the Revolution * * *.” United States v. Rabino-

witz, 339 U.S. 56, 69 (Frankfurter, J., dissenting).

The history and evolution of the Fourth Amendment have

been discussed at length in the decisions of this Court (see, e. g.,

Stanford v. Texas, 379 U.S. 476, 481-485; Marcus v. Search

Wa: rant, 367 U.S. 717, 724-729; Frank v. Maryland, 359 U.S.

360, 363-365; Harris v. United States, 331 U.S. 145, 157-161

(Frankfurter, J., dissenting) ; Boyd v. United States, 116 U.S.

616, 624-629) and in scholarly treatises (see Taylor, Two

Studies in Constitutional Interpretation 3-46 (1969); Landyn-

ski, Search and Seizure and the Supreme Court 19-48 (1966) ;

The cornerstone of the protection accorded an English-

man from intrusions into his privacy has always been the

integrity of the home, a protection that has been traced back

to biblical times (Lasson, The History and Development

of the Fourth Amendment to the United States Constitution

13-14 (1937)) and that was reflected in Lord Coke’s apho-

rism that “every man’s house is his castle.” Semayne’s

Case, 3 Coke Rep. 91a (Fraser ed., pt. 5). At early common

law, the principle was so strongly entrenched that the

search warrant was unknown and any unconsented entry

onto the land of another was a trespass. Kaplan, Search

and Seizure: A No-Man’s Land in the Criminal Law, 49

Calif. L. Rev. 474, 475 (1961). While this extreme position

eventually gave way to necessity, the absolute sanctity of

the home continued until well into the late middle ages. As

Lasson writes (pp. 34-35, n. 78):

In 1470 * * * it was decided that although it was lawful

for ar owner of goods to enter upon the land of another

who had wrongfully taken them from him, he could not

break into his house. Yearbooks, 9 Edw. IV, Mich. Pl.

10, cited in Holdsworth, III, 279. A constable broke

doors to search at his peril in hue and ery. Sir Matthew

Hale, History of the Pleas of the Crown (Philadelphia,

1847), IT, 98-104. A debtor’s house was always consid-

ered his asylum and could not be broken into. James

Paterson, Commentaries on the Liberty of the Subject

(London, 1877), II, 231 ff.

The first major exception to this rule occurred in the

ease of the warrant to search for stolen goods, a judicial

order that “crept into the law by imperceptible practice”

(Entick v. Carrington, 19 How. St. Tr. 1030, 1067, 95 Eng.

Rep. 807) but that was firmly established by 1650. The

victim of a theft could obtain a warrant to search the

premises of another if he was willing to swear—on pain of

Lasson, The History and Development of the Fourth Amend-

ment to the United States Constitution 13-105 (1937).

answering in damages if he were in error—that he reason-

ably suspected that the stolen goods would be found.

Barrett, Personal Rights, Property Rights, And The Fourth

Amendment, 1960 Sup. Ct. Rev. 46, 50. The stolen goods

warrants also encompassed two forms of contraband—

goods on which the proper tax had not been paid and the

means or instrumentalities of a crime. Kaplan, supra, 49

Calif. L. Rev. at 475.

While the warrant for stolen goods breached the sanctity

of the home, it was surrounded by procedural safeguards

such as an allegation of probable cause under oath, and it

could only be issued by a court. During the last decades of

the 17th and the first half of the 18th century, however,

several events occurred that convinced the colonists that a

warrant, without more, was an inadequate protection

against abuse of the privacy of the home. By the time of

Charles II, there developed the widespread use of general

warrants, first sanctioned by statute but later issued under

the King’s inherent authority, in order to find evidence

among the papers of suspects accused of seditious libel and

similar crimes. Unlike the stolen goods warrants, these

warrants were issued by the executive rather than the

courts, and they authorized, without specificity or a show-

ing of probable cause, the arrest of any person and the

search of any dwelling for evidence. Lasson, supra, at 37,

42; Fraenkel, Concerning Searches and Seizures, 34 Harv.

L. Rev. 361, 362-363 (1921).

The validity of these general warrants went virtually

unquestioned until 1762, when John Wilkes, a member of

Parliament, began publication of a series of anonymous

pamphlets known as The North Briton, which attacked the

ministers as “tools of despotism and corruption” and were

critical of the policies of the government.* After the publi-

cation on April 23, 1763, of The North Briton, No. 45, which

accused the King, among others, of dishonestly and dis-

honorably negotiating a peace treaty with France, Lord

Halifax, the Secretary of State, issued a general warrant

to four messengers, ordering them “to make strict and

diligent search for the authors, printers, and publishers of

a seditious and treasonable paper, entitled The North

Briton, No. 45, .. . and them, or any of them, having found,

to apprehend and seize, together with their papers.”

Lasson, supra, at 43. The messengers proceeded to arrest

and imprison some 50 suspects in three days and to seize

large quantities of their private papers. Among those ar-

rested was Wilkes, whose protests against the legality of

the general warrants became a national issue (id. at 43-44).

On Wilkes’ urging, several printers who had been ar-

rested and whose homes had been ransacked brought suit

against the messengers for trespass, assault and false

imprisonment. Although the messengers defended by rely-

ing upon the Halifax warrant, Chief Justice Pratt de-

clared the warrant to be illegal and upheld the verdict

of £ 300, stating that “[t]o enter a man’s house by virtue

of a nameless warrant, in order to procure evidence, is

worse than the Spanish Inquisition; a law under which no

Englishman would wish to live an hour; it was a most

daring public attack made upon the liberty of the subject.”

Huckle v. Money, 2 Wils. K.B. 206, 207, 95 Eng. Rep. 768,

769. Wilkes then sued Robert Wood, an aide to Lord Hali-

fax who had supervised the execution of the warrant, and

he obtained a similar heavy verdict. Wilkes v. Wood, 19

How. St. Tr. 1153, 98 Eng. Rep. 489. The messengers ap-

*See generally 3 Churchill, A History of the English-Speak-

ing Peoples—The Age of Revolution 165-169 (1957).

pealed, but the judgments were affirmed. Leach v. Money,

19 How. St. Tr. 1001, 97 Eng. Rep. 1075.

At approximately the same time, another, more cele-

brated, attack on the use of general warrants occurred. In

November 1762 Lord Halifax had issued a warrant for the

arrest and seizure of the books and papers of John Entick,

“the author, or one concerned in the writing of several

weekly very seditious papers, entitled ‘The Monitor or

British Freeholder * * *’.” Entick v. Carrington, supra, 19

How. St. Tr. at 1031. After Entick was arrested, his house

thoroughly searched, and his personal papers seized, he

sued the messengers in trespass and recovered £ 300. The

Court of Common Pleas, sitting en banc, upheld the verdict

in an opinion welcomed and applauded by the lovers of

liberty in the colonies as well as in the mother country”

(Boyd v. United States, 116 U.S. 616, 626). Chief Justice

Camden proclaimed:

The great end, for which men entered into society,

was to secure their property. That right is preserved

sacred and incommunicable in all instances, where it

has not been taken away or abridged by some public

law for the good of the whole. * * * By the laws of

England, every invasion of private property, be it

ever so minute, is a trespass. No man can set his foot

upon my ground without my license, but he is liable to

an action, though the damage be nothing; which is

proved by every declaration in trespass, where the

defendant is called upon to answer for bruising the

grass or even treading upon the soil. If he admits the

fact, he is bound to shew by way of justification, that

some positive law has empowered or excused him. The

justification is submitted to the judges, who are to

look into the books; and if such a justification can be

maintained by the text of the statute law, or by the

principles of the common law. If no such excuse can be

found or produced, the silence of the books is an au-

thority against the defendant, and the plaintiff must

have judgment.

Entick v. Carrington, supra, 19 How. St. Tr. at 1066.

After surveying the precedents, Lord Camden could find

no justification for the general warrants. In particular,

they were not like the warrants issued to search for stolen

goods (id. at 1067):

Observe too the caution with which the law proceeds

in this singular case. —There must be a full charge upon

oath of a theft committed. —The owner must swear

that the goods are lodged in such a place. —He must

attend at the execution of the warrant to shew them

to the officer, who must see that they answer the de-

scription. —And, lastly, the owner must abide the

event at his peril: for if the goods are not found, he

is a trespasser; and the officer being an innocent per-

son, will be always a ready and convenient witness

against him. .

On the contrary, in the case before us nothing is de-

scribed, nor distinguished: no charge is requisite to

prove, that the party has any criminal papers in his

custody: no person present to separate or select: no

person to prove in the owner’s behalf the officer’s mis-

behavior. —To say the truth, he cannot easily mis-

behave, unle.s he pilfers; for he cannot take more than

all.

If it should be said that the same law which has with

so much circumspection guarded the case of stolen

goods from mischief, would likewise in this case pro-

tect the subject, by adding proper checks; would re-

quire proofs beforehand; would call upon the ser-

vant to stand by and overlook; would require him to

take an exact inventory, and deliver a copy: my answer

is, that all of these precautions would have been long

since established by law, if the power itself had been

legal; and that the want of them is an undeniable

argument against the legality of the thing.

Within two years, in April 1766, the House of Commons

resolved that the seizure of papers in cases of libel was

illegal and that general warrants were universally illegal

except in cases provided for by act of Parliament. 19 How.

St. Tr. at 1074-1075.

Evidence of the dangers of the general warrant was not

limited to one side of the Atlantic. Also fresh in the minds

of those who drafted the Constitution were the writs of

assistance, which were general search warrants authorizing

customs officials in the Colonies to enter anywhere during

daylight hours to search for smuggled goods. See Stanford

v. Texas, 379 U.S. 476, 481-484. The writs were in many

ways more objectionable than the general warrants, since,

unlike the warrants, which were directed toward a par-

ticular case of libel, the writs were “not returnable at all

after execution, but [were] good as a continuous license

and authority during the whole lifetime of the reigning

sovereign.” Lasson, supra, at 54. See also Landynski, supra,

at 30-31.

The death of George II in October 1760 and the resulting

expiration of the outstanding writs six months later led

the merchants of Boston to petition the courts that the

writs not be renewed. The merchants were represented in

their cause by James Otis, Jr., whose oration before the

Superior Court of Massachusetts electrified the colonists

(2 Legal Papers of John Adams 142-144 (Wroth and Zobel

ed. 1965)) :

Now one of the most essential branches of English

liberty, is the freedom of one’s house. A man’s house

is his castle; and while he is quiet, he is as well

guarded as a prince in his castle. This writ, if it should

be declared legal, would totally annihilate this privi-

lege. Custom house officers may enter our houses when

they please—we are commanded to permit their entry

—their menial servants may enter—may break locks,

bars and every thing in their way—and whether they

break through :nalice or revenge, no man, no court

ean inquire—bare suspicion without oath is sufficient.

„Again these writs ARE NOT RETURNED. Writs in

their nature are temporary things; when the purposes

for which they are issued are answered, they exist no

more; but these monsters in the law live forever, no one

can be called to account. Thus reason and the constitu-

tion are both against this writ.

Although Otis’ words were persuasive, the Crown’s power

to issue the writs was eventually upheld, and subsequent

acts of Parliament clearly signaled the intention that they

be enforced. See Landynski, Search and Seizure and the

Supreme Court 33-36 (1966); Lasson, supra, at 62-66.

Two conclusions important to a consideration of the

proper role of search warrants under the Fourth Amend-

ment are apparent from this brief historical discussion.

One is that the colonists’ chief, if not exclusive, concern

with unreasonable searches and seizures was directed to-

ward unjustified intrusions into the home. It was against

the background of a history of lawless entry into a man’s

home under the guise of authority, followed by wholesale

search through his papers and possessions, that the Fourth

Amendment was adopted. The right of the people “to be

secure in their persons, houses, papers, aud effects, against

unreasonable searches and seizures” in essence entailed for

the Framers “the right to shut the door on officials of the

state unless their entry is under proper authority of law.”

Frank v. Maryland, 359 U.S. 360, 365.“ The home was

the area in which the greatest expectation c? privacy was

placed and over which the great battles of Wilkes, Entick,

and Otis, involving the genera) warrants and the writs of

assistance, had been fought. Indeed, it is fair to say that

the historical record reflects no similar concern by the

colonists and their British contemporaries at the spectre

of an unjustified search or seizure of chattels that had

voluntarily been removed from the dwelling. Taylor, Two

Studies in Constitutional Interpretation 39, 43 (1969).

The second, related conclusion to be drawn from the

historical record is that “our constitutional fathers were

not concerned about warrantless searches, but about over-

reaching warrants.” Taylor, supra, at 41. As Professor

Taylor has observed (ibid.) :

It is perhaps too much to say that they feared the

warrant more than the search, but it is plain enough

that the warrant was the prime object of their concern.

Far from looking at the warrant as a protection

against unreasonable searches, they saw it as an au-

thority for unreasonable and oppressive searches, and

sought to confine its issuance and execution in line

with the stringent requirements applicable to com-

mon-law warrants for stolen goods—an interesting use

of a practice already obsolescent to limit and mitigate

a current and dangerous practice.

framers’ thought of those. It is illusory to suppose that we can

know what they thought of anything else. Nothing else was

then in controversy.” Amsterdam, Perspectives On The Fourth

Amendment, 58 Minn. L. Rev. 349, 398 (1974). See also

Fraenkel, supra, 34 Harv. L. Rev. at 365 (“It is, therefore,

Nothing in the pertinent history suggests that the

Framers were troubled by warrantless searches outside the

home or that the Fourth Amendment was intended to upset

the settled practice allowing such searches if supported by

probable cause.“ Searches outside the privacy of the home,

after all, “involved none of the abuses against which Otis

and Camden railed. The only victims of such searches were

those who, as probable feluns, were the objects of hue and

ery, hot pursuit, or an arrest warrant,” and it was accepted

that “their persons [should] be subject to search for the

fruits of their crimes, or the weapons, clothes, or other

objects that might identify them as felons * * . Here was

no threat to the honest householder, no fear of arrogant

‘messengers’ breaking open desks or trunks to search for

smuggled jewels or libellous documents. What need for a

warrant to justify a search that was so natural a concomi-

tant of apprehending and convicting a dangerous cut-

throat?” Taylor, supra, at 39.

2. Evidence of events contemporaneous with the adop-

tion of the Constitution indicates that the Framers

were concerned with general warrants rather than

warrantless searches and did not intend to alter the

settled historical distinction between warrantless

searches of buildings and of other places

The Framers’ preoccupation with general warrants

rather than warrantless searches is borne out by the con-

stitutions adopted by the colonial legislatures after inde-

pendence was declared. Between 1776 and 1783, at least

„„ „ A rr

eight States—Virginia,’ Pennsylvania,“ Delaware,“ Mary-

land,” North Carolina," Vermont, * Massachusetts,” and

New Hampshire — adopted declarations of rights that in-

cluded a provision on searches and seizures, and “[i]}n all

of them the warrant is treated as an enemy, not a friend.”

Taylor, supra, at 41. See also Henry v. United States, 361

U.S. 98, 100-101; Lasson, supra, at 79-82. While many of

these early constitutions also stated the broader principle

of freedom from unreasonable searches and seizures, the

wording of these provisions “seems to show that the gen-

eral principle was stated merely as a basis for the minor

premise condemning general warrants and that the abuse

attempted to be prevented was that of general warrants

only.” Lasson, supra, at 81, n. 10.

This historical concern is further confirmed by the “legis-

lative history” of the Fourth Amendment itself. In propos-

ing the adoption of that provision, James Madison’s state-

ment to the House of Representatives directed its attention

Virginia Declaration of Rights, Art. 10 (1776), reprinted

in 1 Schwartz, The Bill Of Rights: A Documentary History 235

(1971) (hereinafter cited as Schwartz“).

*Pennsylvania Declaration of Rights, Art. X (1776)

(Schwartz 265).

wn Declaration of Rights, § 17 (1776) (Schwartz

Maryland Declaration of Rights, Art. XXIII (1776)

(Schwartz 282).

"North Carolina Declaration of Rights, Art. XI (1776)

(Schwartz 287).

“a Declaration of Rights, Art. XI (1777) (Schwartz

* Massachusetts Declaration of Rights, Pt. I, Art. XIV

(1780) (Schwartz 342).

New Hampshire Bill of Rights, Art. XIX (1788

(Schwartz 377-378). ,

solely to the problem of general warrants (1 Annals of

Congress 438 (1789)):

The General Government has a right to pass all laws

which shall be necessary to collect its revenue; the

means for enforcing the collection are within the di-

rection of the Legislature: may not general warrants

be considered necessary for this purpose, as well as for

some purposes which it was supposed at the framing

of their constitutions the State Governments had in

view? If there was reason for restraining the State

Governments from exercising this power, there is like

reason for restraining the Federal Government.”

Accordingly, the original draft of the Fourth Amendment,

as revised in minor, stylistic particulars by the Committee

of Eleven, reflected the understanding thai it was to be

aimed specifically and solely against the use of certain

sorts of warrants. It provided (1 Cong. Deb. 783 (Gales

and Seaton ed. 1834)):

The right of the people to be secured in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated by warrants

issuing without probable cause, supported by oath or

affirmation, and not particularly describing the place to

be searched, and the persons or things to be seized.

10 In a letter to George Eve a few months earlier, Madison

had written (1 Letters and Other Writings of James Madison

447 (1865)):

[ijt is my sincere opinion that the Constitution ought

to be revised, and that the first Congress meeting under it

ought to prepare and recommend to the States for ratifica-

tion the most satisfactory provisions for all essential

rights, particularly the rights of conscience in the fullest

the freedom of the press, trials by jury, security

against general warrants, &c.

An amendment was then proposed by Representative Ben-

son of New York (ibid.):

Mr. Benson objected to the words “by warrants issu-

ing.” This declaratory provision was good as far as

it went, but he thought it was not sufficient; he there-

fore proposed to alter it so as to read “and no warrant

shall issue.”

The question was put on this motion, and lost by a

considerable majority.

As described by Lasson, supra, at 101-102, however, the

Benson version was eventually adopted, it seems, by over-

sight (footnotes omitted; emphasis in original) :

[Oln August 24, when Benson as chairman of a Com-

mittee of Three, which had been appointed to arrange

the amendments, reported an arrangement of the

amendments as they were supposed to have been

agreed upon by the House, the clause appeared as he

had proposed it and as the House had rejected tt.

And so it stands today. The records do not show

that the alteration was ever noticed or assented to as

such by the House. In this form it was received and

agreed to by the Senate. And the only remaining dis-

cussion by the House and Senate concerned those

amendments upon which the two houses were not in

accord.

See also Fraenkel, supra, 34 Harv. L. Rev. at 366, n. 30;

Landynski, supra, at 41-42.

The language of the Fourth Amendment as eventually

ratified plainly affords protection against both unreason-

able searches and seizures and general or otherwise defec-

tive warrants. But this background strongly suggests that

the Framers intended no change in the then-settled rule

that not every warrantless search was per se unreasonable.

Although the Framers had focused their attention on the

— — —

search of the home and had assumed that an intrusion into

that area would not be lawful except if undertaken pursu-

ant to a warrant meeting the constitutional requirements,

there is no hint in the historical materials that other

warrantless searches were considered equally repugnant

or were to be measured by the same exacting standard.

Indeed, as we develop below, see pp. 41-43, infra, quite the

contrary may be inferred from legislation enacted by the

very Congress that drafted the Bill of Rights, and by other

early Congresses, which countenanced warrantless searches

outside the sanctity of the dwelling.

3. This Court has repeatedly acknowledged the dis-

tinction between warrantless searches of the home

and of areas of lesser expectation of privacy

Our contention that a warrant is an essential ingredient

of reasonableness under the Fourth Amendment only when

the conduct of law enforcement officers touches on interests

that implicate “the essential purpose of the Fourth Amend-

ment” (Jones v. United States, 357 U.S. 493, 498) is one

that finds substantial support in the decisions of this Court.

Although the Court has cautioned that “the Fourth Amend-

ment protects people, not places” (Katz v. United States,

supra, 389 U.S. at 351), it has always recognized that some

places are more personal—are more directly linked to the

need for individual privacy—and hence more deserving of

Fourth Amendment protection than are others.

The home more than any other place satisfies the indi-

vidual’s need for a sanctuary from which the public eye

and, insofar as reasonable, the public authority can be

excluded except under the most compelling justifications

and safeguards. This is not only because as a historical

matter, as noted above, “physical entry of the home is the

chief evil against which the wording of the Fourth Amend-

ment is directed” (United States v. United States District

Court, supra, 407 U.S. at 313), ut also because [alt the

very core [of personal privacy] stands the right of a man

to retreat into his own home and there be free from un-

reasonable governmental intrusion.” Silverman v. United

States, 365 U.S. 505, 511. It is for this reason that “over

the years the Court consistently has been the most protec-

tive of the privacy of the dwelling” (Wyman v. James, 400

U.S. 309, 316) and has afforded “the sanctity of private

dwellings * * * the most stringent Fourth Amendment

protection” (United States v. Martinez-Fuerte, No. 74-1560,

decided July 6, 1976, slip op. 17-18).

In addition to the home and other structures such as an

office“ or hotel room,“ private communications have re-

ceived maximum protection from governmental search or

seizure. Again, this determination has rested both on the

historical underpinnings of the Fourth Amendment—“ [t]he

Bill of Rights was fashioned against the background of

knowledge that unrestrieted power of search and seizure

could also be an instrument for stifling liberty of expres-

sion” (Marcus v. Search Warrant, 367 U.S. 717, 729)—

and on the practical realization of the considerable expecta-

tion of privacy placed on conversations held in private and

the intrinsic societal importance of satisfying that expecta-

tion. See, e.g., United States v. United States District

Court, supra; Katz v. United States, supra; Berger v.

New York, 388 U.S. 41.“ Similarly, and for even more

0G. M. Leasing Corp. v. United States, No. 75-235, decided

January 12, 1977; Mancusi v. DeForte, 392 U.S. 364; Silver-

thorne Lumber Co. v. United States, 251 U.S. 385.

Stoner v. California, 376 U.S. 483; United States v. Jeffers,

342 U.S. 42 Johnson v. United States, 333 U.S. 10.

Because here is no difference [in the expectation of

privacy] between the sealed letter and the private telephone

message” (Olmstead v. United States, 277 U.S. 438, 475;

Brandeis, J., dissenting), the protections accorded private

obvious reasons, intrusions into a person’s body (except,

perhaps, at the border) have required both probable cause

and, in the absence of exigent circumstances, a warrant. See

Schmerber v. California, 384 U.S. 757, 770.

An appreciation of the unique position occupied by the

home and these other high privacy areas explains the

Court’s consistent application of the accepted rule that “a

search of private houses is presumptively unreasonable if

conducted without a warrant” (See v. City of Seattle, 387

U.S. 541, 543), subject only to “‘a few specifically estab-

lished * * * situations’ [in which] a warrantless search of

a dwelling [may] withstand constitutional scrutiny.” Vale

v. Louisiana, 399 U.S. 30, 34. Because of the substantial

privacy invasion inevitably occasioned by such searches,

it is reasonable to insist both that the justification for the

intrusion be strong i. e., that there be probable cause to

believe that the object to be seized will be found in the

area to be searched—and that the probable cause determi-

nation be made in advance by a neutral and detached

magistrate.

Advance judicial approval in these contexts makes a

significant contribution to the values protected by the

Fourth Amendment. Not only does resort to a warrant

ensure that unjustified searches and seizures—with their

consequent impairment of “core” privacy expectations—

will not occur, but it also limits the scope of the officer’s

discretion by “particularly describing the place to be

searched, and the persons or things to be seized.” As the

Court observed in Camara v. Municipal Court, 387 U.S.

523, 532:

[W]hen [an] inspector [without a warrant] demands

entry, the occupant has no way of knowing whether

enforcement of the municipal code involved requires

inspection of his premises, no way of knowing the

lawful limits of the inspector’s power to search, and

no way of knowing whether the inspector himself is

acting under proper authorization.

A warrant provides assurance to the oecupant of a home

on each of these scores. See G. M. Leasing Corp. v. United

States, No. 75-235, decided January 12, 1977, slip op. 18;

United States v. Martinez-Fuerte, supra, slip op. 21. By

the same token, in the interception of wire or oral communi-

cations, another context in which the warrant requirement

is unequivocally imposed, the possibility of “rummaging”

by law enforcement officers is equally real and the benefits

to the individual from an officer’s resort to a warrant

equally substantial. Cf. 18 U.S.C. 2518(4) and (5).

In these high privacy areas, then, prior resort to a

magistrate has an important role to play, and it is consti-

tutionally unreasonable for law enforcement officers to

search and seize without a warrant if one could have been

obtained. We recognize, however, that on several occasions

the Court has articulated the constitutional preference for

a warrant and the presumptive unreasonableness of a

warrantless search in broader terms. In Kate v. United

States, supra, 389 U.S. at 357, for example, the Court

stated :

Searches conducted without warrants have been held

unlawful “notwithstanding facts unquestionably show-

ing probable eause,” Agnello v. United States, 269 U.S.

20, 33, for the Constitution requires “that the delib-

erate, impartial judgment of a judicial offieer . . . be

— —

interposed between the citizen and the police

Wong Sun v. United States, 371 U.S. 471, 481-482.

“Over and over again this Court has emphasized that

the mandate of the [Fourth] Amendment requires ad-

herence to judicial processes,” United States v. Jeffers,

342 U.S. 48, 51, and that searches 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. [Footnotes

omitted. ]

Despite this unqualified statement, the Court to our knowl-

edge has never invalidated a search, based upon probable

cause and otherwise reasonable, because it was undertaken

without a warrant, except in an area of “eore” privacy such

as the dwelling or private communication.”

(emphasis added); (2) Chapman v. United States, 365 U.S.

610, which held that a landlord could not authorize the

warrantless entry into the apartment of his tenant; (3) Stoner

v. California, supra, 876 U.S. at 490, which held that “[n]o less

than a tenant of a house, or occupant of a room in a boarding

house * * *, a guest in a hotel room is entitled to [the] * * *

protection against unreasonable searches and seizures.” A

fourth case, Rios v. United States, 364 U.S. 253, involved a

search and seizure of narcotics from a defendant who had been

riding in a taxicab, where there was neither a warrant nor

any showing of probable cause to justify the entry into the

vehicle. Id. at 261

The Court’s other recent expressions of this rule have in-

cluded (a) the plurality opinion in Coolidge v. New Hampshire,

supra, 408 U.S. at 454-455, which relied on Katz v. United

States, supra (private communication) ; Jones v. United States,

supra (home); MeDonald v. United States, 385 U.S. 451

(rooming house); and United States v. Jeffers, supra (hotel

room); (b) Cady v. Dombroweki, 413 U.S. 438, 439, which

Indeed, in the one area of lesser privacy expectations

that has precipitated the most abundant Fourth Amend-

ment litigation—the search of automobiles and other mov-

able vehicles—the Court has expressly declined to equate

the reasonableness of a search with the opportunity to

relied on Camara v. Municipal Court, supra (apartment) and

Coolidge v. New Hampshire, supra; and (e) G. M. Leasing

Corp. v. United States, supra, slip op. 13-14, which involved a

warrantless search of business premises and relied on Camara

v. Municipal Court, supra; Coolidge v. New Hamphire, supra;

Stoner v. California, supra; United States v. Jeffers, supra;

McDonald v. United States, supra; and — v. United States,

269 U.S. 20 (home).

Although Coolidge may be read as — extended the per se

rule to the search of a chattel (i. e., an automobile), the

emphasis in Coolidge was upon the fact that the automobile

was parked adjacent to the defendant’s home and could only be

seized by “entering [his] private property” (403 U.S. at 463, n.

20). Part II-D of the opinion in Coolidge—the only relevant

portion of the opinion that commanded a majority of the Court

—is based on “[t]he most common situation in which Fourth

Amendment issues have arisen,” namely, those “in which the

police enter the suspect’s premises, arrest him, and then carry

out a warrantless search and seizure of evidence” (id. at 475;

emphasis added). The thrust of that part of the opinion is

devoted to answering the argument “that warrantless entry

{onto a person’s premises] for purposes of arrest and warrant-

less seizure and search of automobiles are per se reasonable, so

long as the police have probable cause” (id. at 479). See also id.

at 480. Mr. Justice Harlan, who cast the deciding vote in Coo-

lidge, likewise viewed the case as involving “such an everyday

question as the circumstances under which police may enter a

man’s property to arrest him and seize a vehicle believed to have

been used during the commission of [an offense]” (id. at 490)

and the same emphasis on the entry onto the defendant’s prem-

ises is also to be found in that portion of the opinion that did not

command a majority of the Court. See, e. g., id. at 461, n. 18.

distinguished

obtain a warrant.” Ever since Chief Justice Taft, writing

for the Court in Carroll v. United States, 267 U.S. 132, 149,

stated “the true rule [to be] that if the search and seizure

without a warrant are made upon probable cause, that is,

upon a belief, reasonably arising out of circumstances

known to the seizing officer, that an automobile or other

vehicle contains that which by law is subject to seizure and

destruction, the search and seizure are valid,” the Court

has consistently upheld the constitutionality of a probable

cause search of a vehicle seized in a public place.“

The rationale for the Court’s disparate treatment of

automobiles and houses does not rest exclusively on the fact

that vehicles are mobile and dwellings are not. While this

factor may frequently excuse the warrantless seizure of a

car under the “emergency” exception to the warrant re-

quirement, it is analytically an insufficient justification for

the subsequent search of the car without prior judicial

approval.” The answer that the Court has provided why

“warrantless examinations of automobiles have been upheld

in circumstances in which a search of a home or office would

0 Motor vehicles are “effects” within the meaning of the

Fourth Amendment. Cady v. Dombrowski, supra, 413 U.S. at

439.

* See, e. g., Husty v. United States, 282 U.S. 694; Scher v.

United States, 305 U.S. 251; Brinegar v. United States, 338

U.S. 160; Chambers v. Maroney, 399 U.S. 42; Cady v. Dom-

browski, supra; Cardwell v. Lewis, supra; Texas v. White, 423

eee *

—V— — — —

— ae — — =

reren rn

rr, ee.) Oe ee

not” is “because the expectation of privacy with respect to

one’s automobile is significantly less than that relating to

one’s home or office.” South Dakota v. Opperman, supra,

slip op. 3.“ “One has a lesser expectation of privacy in a

motor vehicle because its function is transportation and it

seldom serves as one’s residence or as the repository of

personal effects.” Cardwell v. Lewis, supra, 417 U.S. at 590.

In Chambers v. Maroney, supra, for example, the police

acquired probable cause to believe that persons driving a

particular car had robbed a service station. They spotted

and stopped the car, arrested its occupants, and drove the

ear to the station house, where they thoroughly searched it

and found handguns and other evidence of the robbery. The

Court upheld the warrantless search of the car even though,

once the car had been seized, there were no exigent cir-

cumstances precluding the procurement of a warrant prior

to the search. Citing the line of cases beginning with

Carroll v. United States, supra, the Court began by stating

that “[{i]n terms of the circumstances justifying a warrant-

less search, the Court has long distinguished between an

automobile and a home or office” (399 U.S. at 48) and that

“automobiles and other conveyances may be searched with-

out a warrant in circumstances that would not justify the

search without a warrant of a house or an office, provided

that there is probable cause to believe that the car contains

articles that the officers are entitled to seize” (ibid.). The

Court then considered whether a distinction should be

drawn between the warrantless seizure of the automobile

and the ensuing warrantless search (id. at 51-52):

Arguably, because of the preference for a mag-

istrate’s judgment, only the immobilization of the car

should be permitted until a search warrant is obtained ;

** See also United States v. Martinez-Fuerte, supra, slip op.

17-18; United States v. Ortiz, 422 U.S. 891, 896, n. 2.

arguably, only the “lesser” intrusion is permissible

until the magistrate authorizes the “greater.” But

which is the “greater” and which the “lesser” intrusion

is itself a debatable question and the answer may de-

pend on a variety of circumstances. For constitu-

tional purposes, we see no difference between on the

one hand seizing and holding a car before presenting

the probable cause issue to a magistrate and on the

other hand carrying out an immediate search without

a warrant. Given probable cause to search, either

course is reasonable under the Fourth Amendment.

The Court warned, however, that the “same conseqnences

may not follow where there is unforeseeable cause to search

a house” because “as Carroll, supra, held, for the purposes

of the Fourth Amendment there is a constitutional differ-

ence between houses and cars” (id. at 52).

4. For purposes of the warrant requirement, there is

no persuasive reason to distinguish between auto.

mobiles and other movable chattels that have been

validly seized in public

The same “constitutional difference” between houses and

cars, resting as it does on the significantly disparate ex-

pectations of privacy in these areas, applies as well between

houses and chattels other than automobiles. One’s reason-

able expectation of privacy in baggage such as the foot-

locker in this case is not appreciably greater than that in a

vehicle. Footlockers and other baggage carry only a frac-

tion of a person’s possessions and rarely contain personal

papers. Indeed, there is virtually no meaningful distinction

between such containers and the enclosed areas of an

automobile, such as a glove compartment or a trunk, which

frequently serve as the temporary repository of personal

effects but which may nonetheless be searched without a

warrant after they have been lawfully seized, if probable

cause exists. See, e. g., Teras v. White, 423 U.S. 67, 68

(front seat console); “ Cady v. Dombrowski, 413 U.S. 433,

437 (locked trunk); Scher v. United States, 305 U.S. 251. 253

(locked trunk); Chambers v. Maroney, supra, 392 U.S. at

44 (glove compartment). Moreover, a footlocker, unlike an

automobile, is arguably less deserving of privacy protec-

tion, since, as here, possession is frequently surrendered

to a common carrier with the consequent risk that it will

be opened. See United States v. Bronstein, 521 F. 2d 459,

465 (C.A. 2) (Mansfield, J., concurring), certiorari denied,

424 U.S. 918.”

Furthermore, objects such as the footlocker are, like

vehicles, easily movable, so that their warrantless seizure,

on probable cause, will almost always be justified. The

rationale of the “automobile search” exception, as previ-

ously noted, is that “the intrusion involved in initially

seizing a car on the highway and holding it for the short

time required to seek a warrant is so substantial as to be

constitutionally indistinguishable from the intrusion in-

volved in a search of the vehicle.” Teras v. White, supra,

423 U.S. at 71 (Marshall, J., dissenting). The same may

be said of the search of a footlocker or suitcase that has

been validly seized. Certainly the seizure of the container

is a substantial interference with the owner’s rights to

** The search of the car in White occurred after the police

had observed the driver “making a hand movement toward

the glove compartment, and then toward the seat as though

attempting to ‘stuff’ something between the seats.” White v.

State, 521 S.W. 2d 255, 256 (Tex. Ct. Crim. App.). The evidence

introduced against the defendant was found “stuffed between

the fold-down console and the front seat of the car.” Ibid.

Indeed. common carriers by tariff often reserve the right to

inspect freight that they are given to transport. See, e.g., Uni-

form Freight Classification 12. I. C. C. 8, Rule 2, §2 (railroads) ;

National Motor Freight Classification, I. C. C. NMF 100-C, Item

No. 360, §3 (motor carriers).

unfettered possession and use of its contents; yet even

under the court of appeals’ view he may be denied access

to it for as long as the officers need to obtain a warrant

(Pet. App. 19a). As in Chambers, once that intrusion has

been sanctioned, calculations of “greater” or “lesser” in-

trusions will not be demanded; either the immediate search

of the chattel or its immobilization until a warrant can be

obtained is reasonable under the Fourth Amendment.”

See also United States v. Edwards, supra, 415 U.S. at 805.

The court of appeals conceded that “baggage or goods

in transit present some of the same characteristics as auto-

mobiles. Unless immobilized, such items may disappear

before a warrant is obtained and immobilization (a step

which most courts, including ourselvés, will permit, given

cause), is arguably just as annoying to the owner as a

search” (Pet. App. 17a). The court nevertheless refused

to follow the reasoning of Chambers to its conclusion so

as to approve the search of respondents’ footlocker as

reasonable. It observed that “[blaggage predated automo-

biles, yet Carroll and its progeny do not mention baggage

as a separate category comparable to vehicles” (ibid.). And

it was concerned that an extension of the Chambers ration-

ale to baggage “could have considerable impact, as [the]

premises [of that argument] might seem to apply not only

to baggage but to mail, express packages, and moving

freight of all description” (id. at 18a). The court concluded,

in short, that there is a difference of constitutional dimen-

sions between the search of one type of movable container

that has been validly seized in publie upon probable cause

(an automobile) and the search of another (baggage or

packages).

In our view, neither history nor logie supports such a

distinction. To begin with, it is not remarkable that Carroll

and subsequent cases* “do not mention baggage as a

separate category comparable to vehicles.” Since each of

those decisions involved the search of a motor vehicle, the

Court had no occasion to discuss the search of baggage

independent of the automobile.“ But at the same time the

Court’s discussion in Carroll implicitly affords strong sup-

port for the contention that its reasoning is not limited to

vehicles.

The decision in Carroll was predicated upon a lengthy

review of congressional statutes and court decisions inter-

preting them, which indicated that, “practically since the

* See n. 21, supra.

**The lower courts, however, have repeatedly upheld the

authority of police to open a footlocker or other container

removed from an automobile that had been seized on probable

cause. See e.g., United States v. Soriano, 497 F. 2d 147 (C.A.

5) (en banc), pending on petition for a writ of certiorari, No.

76-5143; United States v. Issod, 508 F. 2d 990 (C.A. 7),

certiorari denied, 421 U.S. 916; United States v. Evans, 481

beginning of the Government,” there has been recognized

“a necessary difference” (267 U.S. at 153) between the

search of houses and similar structures and the search of

“goods in the course of transportation” (id. at 149-151) :

It is noteworthy that the twenty-fourth section of

the Act of 1789 [1 Stat. 29, 43] provides:

“That every collector, naval officer and surveyor, or

other person specially appointed by either of them

for that purpose, shall have full power and authority,

to enter any ship or vessel, in which they shall have

reason to suspect any goods, wares or merchandise

subject to duty shall be concealed; and therein to

search for, seize, and secure any such goods, wares or

merchandise; and if they shall haye cause to suspect a

concealment thereof, in any particular dwelling-house,

store, building, or other place, they or either of them

shall, upon application on oath or affirmation to any

justice of the peace, be entitled to a warrant to enter

such house, store, or other place (in the day time only)

and there to search for such goods, and if any shall! be

found, to seize and secure the same for trial; and all

such goods, wares, and merchandise, n which the

duties shall not have been paid or secured, shall be

forfeited.”

Again, by the second session of the Act of March 3,

1815, 3 Stat. 231, 2, it was made lawful for customs

officials not only t. board and search vessels within

their own and adjoining districts, but also to stop,

search and examine any vehicle, beast or person on

which or whom they should suspect there was merchan-

dise which was subject to duty or had been introduced

into the United States in any manner contrary to law,

whether by the person in charge of the vehicle or beast

or otherwise, and if they should find any goods, wares

or merchandise thereon, which they had probable

cause to believe had been unlawfully brought into the

country, to seize and secure the same, and the vehicle

or beast as well, for trial and for forfeiture.”

See also Lasson, supra, at 125. As the Court noted in

Carroll (267 U.S. at 152), this Ac’ expired after two years

but was later revived and reenacted as Section 3 of the Act

of Jnly 18, 1866, 14 Stat. 178, which provided in part:

That any of [certain authorized officers or other per-

sons] may stop, search, and examine, * * * any vehicle,

beast, or person on which or whom he or they shall

suspect there are goods, wares, or merchandise which

are subject to duty or shall have been introduced into

the United S tes in any manner contrary to law,

* * * and to search any trunk or envelope, wherever

found, in which he may have a reasonable cause to

suspect there are goods which were imported contrary

to law; and if any such officer or other person so au-

thorized as aforesaid shall find any goods, wares, or

merchandise, on or about any such vehicle, beast, or

person, or in any such trunk or envelope, which he

shall have reasonable cause to believe are subject to

duty, or to have been unlawfully introduced into the

United States, * * * he shall seize and secure the same

for trial * * * [Emphasis added.] *

20 Morover, the Act of March 3, 1815, 3 Stat. 232, contained

the following proviso in Section 2:

Provided always, That the necessity of 2 search warrant,

arising under this act, shall in no case be considered as

applicable to any carriage, wagon, cart, sleigh, vessel, boat,

or other vehicle, of whatever form or construction, em-

ployed as a medium of transportation or to packages on

any animal or animals, or carried by man on foot. [Empha-

sis added.]

The President who signed the 1815 statute into law was,

of course, James Madison, who had proposed the language

that eventually became the Fourth Amendment. Lasson, supra,

at 100.

This section, which later became Rev. Stat. § 3061, is now

19 U.S.C. 482.

The significance of these statutes is readily apparent.

The First Congress, many of whose members had only a

few years earlier railed against the “hated writs of assist-

ance,” which “had given customs officials blanket authority

to search where they pleased for goods imported in viola-

tion of the British tax laws” (Stanford v. Texas, supra, 379

U.S. at 481), nevertheless clearly authorized American offi-

cials to seize and search uncustomed goods on reason to

suspect their existence; only when the search and seizure

occurred in a “dwelling-house, store, building, or other

place” out of the public view was a warrant required. And

of equal importance is the fact that the statutes relied on in

Carroll as having recognized a “constitutional difference

between houses and cars” (Chambers v. Maroney, supra,

399 U.S. at 52) dealt in precisely the same fashion with

other movable containers or packages. Each could contain

articles that the police were entitled to seize, and each was

potentially removable from police control before a warrant

could be obtained; therefore, so long as the officers had

sufficient justification for the intrusion, each was subject to

search without a warrant. As the Court has since observed,

lelommon sense dictates * * * that questions involving

searches of motorcars or other things readily moved cannot

be treated as identical to questions arising out of searches

of fixed structures like houses.” Preston v. United States,

376 U.S. 364, 360 (emphasis added).

Nor is there substance to the First Circuit’s objection

that to permit a warrantless search of baggage such as a

footlocker upon probable cause would inevitably lead to

similar searches of “mail, express packages, and moving

freight of all description” (Pet. App. 18a). We have al-

ready noted (see p. 30 and note 18, supra) that both histori-

cal considerations related to a central purpose underlying

the adoption of the Fourth Amendment—the protection of a

person’s papers from indiscriminate searches—and the

strong expectation of privacy in private communications

justify a presumptive warrant requirement before domestic

first-class mail may be opened.“ The rule that we urge for

baggage and other movable containers not possessing such

hich-privacy characteristics would not affect that require-

ment. As to “express packages, and moving freight of all

description,” it is difficult to understand why a rule per-

mitting the probable cause search of baggage lawfully

seized in a public place is made less reasonable because it

arguably would allow the search of these other, similar

types of containers. Indeed, a substantial portion of the

“freight” that law enforcement officers encounter in transit

deserves less stringent Fourth Amendment protection than

baggage, since the owner’s privacy interest in such goods

(which he may never have seen) is generally considerably

subordinate to his proprietary interest in them—his con-

cern that they arrive safely—and he may have described

their contents on the outside of the package both as an

advertisement and as an aid in ensuring their proper

handling.

Finally, the warrantless, probable cause search of per-

sonal belongings outside the home is reasonable because it

creates little risk of those abuses that the Warrant Clause

was designed to prevent. Of prime importance is the fact

that each such search must be justified by facts sufficient

to warrant a man of prudence and caution to believe that

the chattel contains contraband or the instrumentalities or

evidence of a criminal offense. This is a stringent require-

Domestic first-class mail also has statutory protection from

search without a warrant. 39 U.S.C. 3623(d). The amenability

of international mail to warrantless search at the border stands

on a different historical and legal footing, the precise contours

of which are presently before the Court in United States v.

Ramsey, No. 76-167, certiorari granted, October 4, 1976.

ment and one whose satisfaction the officer may eventually

have to demonstrate in court.“ Moreover, there is little

opportunity in such searches for the type of wide-ranging,

indiscriminat. rummaging through possessions that a

search of a house or office or of communications may entail

and that the warrant historically was designed to prevent.

See Marron v. United States, 275 U.S. 192, 196. The scope

of the search is necessarily limited by the size and contours

of a relatively small container and by the number of items

that can be enclosed therein. A person can exercise sub-

stantial control over both the kinds of belongings that he

subjects te search in public and the frequency with which

the police: will encounter them; a dwelling, on the other

hand, is always subject to search (within reasonable time

limits) when the police have reason to believe that it

harbors criminal activity or evidence. Most importantly,

perhaps, a search of chattels outside the home may only

occur after the police have properly seized them without a

warrant and denied the owner access to them—a risk that

a person necessarily accepts when he transports the chattel

in public and that further diminishes his reasonable ex-

pectation of privacy.

In sum, if this case involved the warrantless search of

an automobile that had been lawfully seized in South Sta-

tion on probable cause to believe that it contained a con-

trolled substance, the outcome would not be in doubt. We

Evidence seized on less than probable cause will be ex-

cluded at trial, and a police officer’s determination of probable

cause is scrutinized with greater care when a warrant has not

been obtained. United States v. Watson, supra, 423 U.S. at 423;

United States v. Ventresca, 380 U.S. 102, 106; Aguilar v.

Texas, 378 U.S. 108, 111. Even if no incriminating evi-

dence is found, an officer who acts without probable cause may

be forced to answer in damages. See Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 US.

388; Monroe v. Pape, 365 U.S. 167.

submit that no different result is required because the

agents searched a footlocker rather than a vehicle. “The

word ‘automobile’ is not a talisman in whose presence the

Fourth Amendment fades away and disappears” (Coolidge

v. New Hampshire, supra, 403 U.S. at 461-462), and the

Court’s decisions upholding warrantless automobile

searches have therefore been grounded in broader princi-

ples that are equally applicable here.

B. Even ir THE CoURT WERE TO ADOPT A PRESUMPTIVE RULE

IN FAVOR OF WARRANTS, THE SEARCH OF THE FOOTLOCKER

WAS REASONABLE

Our discussion thus far has sought to demonstrate that

the search of a footlocker that has been lawfully seized in

a public place upon probable cause to believe that it con-

tains evidence of a crime is not unreasonable under the

Fourth Amendment simply because accomplished in the

absence of a warrant. Application of this principle would

require a reversal of the court of appeals’ judgment, since

both lower courts found (Pet. App. 8a, 45a), and respon-

dents have never seriously contested, that the agents had

probable cause to believe that the footlocker contained

marijuana and that the agents could therefore properly

immobilize it until a search could take place. But regardless

of whether the Court adopts this contention, two additional

factors present in this case contribute to the lawfulness of

the warrantless search of the footlocker: the agents’ belief

that the footlocker contained contraband, and respondents’

arrests at the time of the seizure.

1. The agents could lawfully seize and search the foot-

locker without a warrant on probable cause to believe

that it contained contraband

The agents had probable cause to believe that the foot-

locker contamed not personal belongings or papers, but

contraband.” Statutes dating almost from the time of

adoption of the Fourth Amendment have authorized war-

rantless searches of packages for “contraband goods in the

course of transportation and subject to forfeiture or de-

struction.” Carroll v. United States, supra, 267 U.S. at 149.

Contraband is material whose very possession the law

proscribes and to whose possession “the government is

entitled“ * *.” Id. at 149, quoting from Boyd v. United

States, supra, 116 U.S. at 623.

In relying upon the fact that the footlocker contained

contraband, we are not attempting to resurrect the distine-

tion between such items and “mere evidence,” a distinction

that was put to rest by Warden v. Hayden, 387 U.S. 294.

The Fourth Amendment does not turn upon whether the

government has a stronger property interest in the seized

goods than does the person claiming to be aggrieved by the

seizure. Id. at 307. But the reasonableness requirement of

the Fourth Amendment does depend upon the strength of

a person’s privacy interest in the area invaded by the

search, and it is significant that a person can have no

reasonable expectation of privacy in contraband goods.

Indeed, in assessing the reasonableness of the warrantless

search in Coolidge v. New Hampshire, supra, the plurality

*The agents could reasonably have believed that the foot-

locker contained nothing but contraband. Not only was the

trunk of an unusual weight for its size, but also a dog trained

opinion several times emphasized that the object of the

search was not “contraband or stolen goods.” 403 U.S. at

472. See also id. at 462.

Moreover, since the presence of the contraband sub-

jected the footlocker to a warrantless seizure and for-

feiture, it was reasonable for the agents to conduct a search

of the chattel in their lawful possession. In Cooper v. Cali-

fornia, 386 U.S. 58, state police arrested the defendant in

connection with a narcotics offense and impounded the

automobile he was driving, pursuant to a state statute re-

quiring the seizure of any “vehicle used to store, conceal,

transport, sell or facilitate the possession of narcotics, such

vehicle ‘to be held as evidence until a forfeiture has been

declared or a release ordered’ ” (id. at 60). One week later

police officers searched the car without a warrant and

found incriminating evidence in the glove compartment.

In affirming the defendant’s conviction despite the use of

the evidence at trial, the Court held that the search had

been reasonable (id. at 61):

Here the officers seized petitioner’s car because they

were required to do so by state law. They seized it be-

cause of the crime for which they arrested petitioner.

They seized it to impound it and they had to keep it

until forfeiture proceedings were concluded. ‘Their

subsequent search of the car—whether the State had

“legal title” to it or not—was closely related to the

reason petitioner was arrested, the reason his car was

impounded, and the reason it was being retained.

Here, too, the seizure of the footlocker was pursuant to

a statute that required its forfeiture. 21 U.S.C. 881 repre-

sents the judgment by Congress that not only automobiles

and other conveyances (2¹ U.S.C. 881 (a) (4) but also

container Is!“ of all kinds (21 U.S.C. 881 (a) (3)) are an

indispensable tool of illicit narcotics traffic and are there-

fore subject to seizure upon probable cause (21 U.S.C. 881

(b)(4)) and forfeiture to the government (21 U.S.C. 881

(b)(3)). The court of appeals agreed that Section 881(b)

“reinforces the agents’ power to detain baggage at least

temporarily” (Pet. App. 19a and n. 9). But if agents may

seize such containers and “treat [them] as if [they] were

their own” (Cady v. Dombrowski, supra, 413 U.S. at 453;

Brennan, J., dissenting), a search of their contents is rea-

sonable “as an integral part of their right of retention”

(ibid.). See Coolidge v. New Hampshire, supra, 403 U.S.

at 464, n. 21; United States v. Edwards, 415 U.S. 800, 807.“

2. A warrant was unnecessary to search the footlocker,

since it had been seized on probable cause at the

time of and in connection with respondents’ arrests

The seizure of the footlocker occurred contemporane-

ously with respondents’ arrests, and the search took place

as soon thereafter as was practicable. * In United States v.

Watson, supra, the Court rerffirmed that the police may

carry out a warrantless arrest in a public place upon prob-

able cause to believe that a crime has been or is being

committed by the person arrested. The Court upheld this

authority, sanctioned both by history and the necessities of

law enforcement, despite the observation of Mr. Justice

See also United States v. Zaicek, 519 F. 2d 412, 414-415

(C.A. 2); United States v. Dinapoli, 519 F. 2d 104, 106 (C.A.

6); United States v. Francolino, 367 F. 2d 1013, 1018-1022

(C.A. 2) (Friendly, J.), certiorari denied, 386 U.S. 960.

the legality of the search. See United States v. Edwards,

415 U.S. at 808; Abel v. United States, 362 US. 217, 239.

Powell (423 U.S. at 428) that as an abstract matter an

argument can be made that the restrictions upon arrest

perhaps should be greater [than those on the search of pri-

vate places]. A search may cause only annoyance and tem-

porary ineonvenience to the law-abiding citizen, assuming

more serious dimension only when it turns up evidence of

criminality. An arrest, however, is a serious personal intru-

sion regardless of whether the person seized is guilty or

innocent.”

Once a valid arrest has occurred, a warrantless search

of the arrestee and of his surrounding area, incident to the

arrest. has always been regarded as reasonable. Weighed

against the “annoyance and temporary inconvenience” of

the search is, first of all, the need of the arresting officers

to protect themselves against use of any weapon that the

arrestee may have in his possession. Equally imperative is

the need to secure evidence of his crime that could be de-

stroyed unless immediately discovered. And a quick search

of the arrestee and his possessions may disclose leads to

the involvement of other persons in the crime—leads that

might prove fruitless if the arrestee or others were to alert

his confederates while the police obtained a warrant.

While the validity of the search of a person incident to

a lawful! arrest “has been regarded as settled from its first

enunciation” (United States v. Robinson, 414 U.S. 218,

224),“ the search of an arrestee’s surrounding area “has

been subject to differing interpretations as to the extent of

the area which may be searched” (ibid.). After a series of

There is little reason to doubt that search of an arrestee’s

person and premises is as old as the institution of arrest itself.”

Taylor, supra, at 28.

often- irreconeilable holdings,” the Court concluded in

Chimel v. California, 395 U.S. 752, that a warrantless search

incident to an arrest was reasonable only if confined to “the

arrestee’s person and the area ‘within his immediate con-

trol’—construing that phrase to mean the area from within

which he might gain possession of a weapon or destructible

evidence.” Id. at 763.

Although the court of appeals recognized the need to

permit the agents to conduct a thorough search of respon.

dents and their belongings at the time of their arrest, it

held that the search of the footlocker could not be justified

on that basis because it was not within respondents’ “imme-

diate control.” This conclusion, we submit, unduly restricts

the search incident to arrest exception to the warrant re-

quirement and incorrectly applies the holding of Chimel to

a type of search that that case, and the decisions that pre-

ceded it, did not involve and should not be construed to

encompass—namely, a search outside the home or office,

where the police have probable cause both to arrest a person

and to search the property in his possession for evidence of

a crime. In such circumstances, the search creates no appre-

ciable risk of the kind of abuse against which Chimel was

directed. Here, unlike the normal “incidental search,”

which is justified solely by the fact of arrest, the agents

had probable cause to believe that the footlocker contained

contraband. In view of this strong, specific justification for

the search and the severely weakened privacy interests of

the person under arrest, it was reasonable for the agents to

* See, e. g., Marron v. United States, supra; Go-Bart Import-

ing Co. v. United States, supra; United States v. Lefkowitz,

undertake the search without the additional protections

accorded by prior resort to a magistrate.

Chimel arose against the background of what the Court

perceived to be an effort by law enforcement officers to

use arrests on private property as little more than a pre-

text for the kind of free-handed and unrestricted search of

premises that the Framers had condemned in adopting the

Warrant Clause. As Mr. Justice Stewart observed in

Chimel (395 U.S. at 767), the Court’s decisions upholding

such searches had given “law enforcement officials the oppor-

tunity to engage in searches not justified by probable

cause, by the simple expedient of arranging to arrest sus-

pects at home rather than elsewhere.” This practice, the

Court noted, had been correctiy characterized by Judge

Learned Hand’s remark in United States v. Kirschenblatt,

16 F. 2d 202, 203 (C. A. 2), that “[a]fter arresting a man in

his house, to rummage at will among his papers in search

of whatever will convict him, appears to us to be indis-

tinguishable from what might be done under a general war-

rant * * *.” Chimel sought to end once and for all such

warrantless, unjustified “top-to-bottom searchſes] of a

man's house” (395 U.S. at 766-767, n. 12).**

Thus, Chimel condemned searches that bore no intrinsic

relationship to the underlying arrest but rather employed

the arrest as a means to bypass both the requirement of

probable cause and (because a “core” privacy area was

* Chimel involved a wide-ranging search of each of the

rooms of the arrestee’s home (395 U.S. at 754). In addition,

each of the search incident to arrest cases disapproved or ques-

tioned in Chimel concerned a search for which a warrant would

otherwise have been required. See Marron v. United States,

supra (apartment); Harris v. United States, supra (apart-

ment) ; United States v. Rabinowitz, supra (office).

implicated) the need for a warrant. * In such circumstances,

because of the minimal justification for the search of the

arrestee’s surrounding area and the important privacy in-

terests invaded by the intrusion, it was imperative that the

scope of the search be limited to the extent “commensurate

with the rationale that excepts the search from the warrant

requirement.” Cupp v. Murphy, 412 U.S. 291, 295.

These considerations are wholly inapposite here for a

number of reasons. Contrary to the court of appeals’ as-

sumption (Pet. App. IIa-13a), searches incident to arrest

are not merely an exception to the warrant requirement.

They are also an exception to the probable cause require

ment. Such searches do not depend fgr their justification

upon a police officer’s reasonable belief that a particular

suspect is carrying a weapon or evidence of the crime for

which he has been arrested. Rather, they are sanctioned by

the arrest itself. United States v. Robinson, supra, 414 U.S.

at 235. This being so, it is reasonable to restrict the scope

of such non-probable-cause searches to those areas in which

weapons could be procured or evidence could be destroyed

if not seized at once—in other words, it is important, as a

protection of Fourth Amendment interests, to restrict the

search so that it is ne wider than its sole articulated

justification.

When a search following an arrest is supported by u

wholly different justification—probable cause to believe

that evidence of a crime will be found—the same restriction

* The First Circuit had previously perceived the import of

Chimel in United States v. Del.eo, 422 F. 2d 487, 492, certiorari

denied, 397 U.S. 1087: “We read Chimel as being acutely con-

cerned about the increasing legitimation of wide-ranging war-

rantless searches of lodgings and buildings based on the fortuity

of arrests on the premises * * *.”

5⁴

does not follow. In such cireumstances the independent

justification prevents searches of areas based entirely on

the fortuity of the locus of the arrest and provides a built-in

limitation on the places and things that may be searched.

There is thus no equally compelling reason to limit the

search solely to those areas within the arrestee’s immediate

control, since the search is designed to uncover evidence

that there is a strong reason to believe will be found, not

merely to prevent the destruction of evidence that may or

may not exist.“

Furthermore, as noted above, Chimel involved the search

The court of appeals’ insistence that belongi j

“immediate control” of the person arrested, a

able cause for a search of the baggage exists and the search

occurs in a public place thus confuses two distinct sets of

Fourth Amendment principles and turns the Amendment’s

protection on its head. A person is more likely to have personal

papers and objects on his person or in a small hand-carried

container such as a briefcase, suitcase or handbag than in a

footlocker. Yet despite the greater expectation of privacy in

the contents of these containers, lower courts, including the

First Circuit, have upheld their warrantless search even in

circumstances where the arrestee has been handcuffed and the

chattel effectively removed from his control. See, e. g., United

States v. Schleis, 543 F. 2d 59 (C. A. 8), pending on petition for

a writ of certiorari, No. 76-5722. United States v. Giles, 586 F.

2d 136 (C. A. 6); United States v. Edmonds, 535 F. 2d 714

(C. A. 2); United States v. Eatherton, supra; United States v.

Battle, 510 F. 2d 776 (C. A. D.C.); United States v. Ciotti, 469

F. 2d 1204 (C. A. 3), vacated on other grounds, 414 U.S. 1151;

United States v. Mehciz, 437 F. 2d 145 (C. A. 9), certiorari

denied, 402 U.S. 974. See also Draper v. United States, supra,

358 U.S. 307, 314. There is no reasonable basis for concluding

that warrantless searches of this kind are reasonable but that

son Dilemma,” 1974 Sup. Ct. Rev. 127, 141.

of a home, for which a warrant has traditionally been re-

quired, and the immediate control“ test was expressly

designed to prevent rummaging akin to that occurring

under a general warrant. Areas in which there is less his-

torical or policy justification for a presumptive warrant

requirement, such as the search of an automobile or, we

submit, a footlocker validly seized in a public place, stand

on an entirely different footing, and there is accordingly

more room for a flexible standard in determining whether

the search of a surrounding area incident to an arrest is

reasonable. Indeed, in the one case that has invalidated an

incidental search outside a building, the search was held to

be defective because it was “too remote in time or place”

from the arrest, rather than because it was too extensive,

and the Court expressly acknowledged that “what may be

an unreasonable search of a house may be reasonable in the

case of a motorear” and that the extent of a search incident

to arrest depends, in part, upon “the place where [the sus-

pect] is arrested.” Preston v. United States, supra, 376 US.

at 366-367.“ See also Dyke v. Taylor Implement Co., 391

U.S. 216, 220.

Even if a warrant would normally be required to search

a footlocker on probable cause, incidental searches follow-

ing an arrest provide safeguards that justify dispensing

with the need for prior resort to a magistrate. Although a

return must be made on a search warrant, property seized

in a warrantless search not accompanying an arrest is not

promptly accounted for to a judicial officer, nor is the pro-

„Moreover, as the Court noted in Chambers v. Maroney,

supra, 399 U.S. at 47, the defendants in Preston had been

arrested for vagrancy, and “it was apparent that the officers

had no cause to believe that evidence of crime was concealed

in the auto.”

priety of the seizure evaluated in any manner by such an

officer, unless and until the person from whom the property

is seized moves for suppression or return of the property.

When the search follows an arrest, however, “there will be

immediate opportunity to challenge the probable cause for

the search in an adversary proceeding. The suspect has

been apprised of the search by his very presence at the

scene, and having been arrested, he will soon be brought

into contact with people who can explain his rights.”

Chimel v. California, supra, 395 U.S. at 782-783 (White, J.,

dissenting).

Finally, a probable cause search of a person’s belongings

following his arrest in a public place is reasonable, whether

or not those belongings may have been within his immediate

control, because of the greatly diminished expectation of

privacy following an arrest. As Mr. Justice Powell ob-

served in United States v. Robinson, supra, 414 U.S. at

237-238 (footnote omitted), “a valid arrest justifies a full

search of the person, even if that search is not narrowly

limited by the twin rationales of seizing evidence and dis-

arming the arrestee. The search incident to arrest is rea-

sonable under the Fourth Amendment because the privacy

interest protected by that constitutional guarantee is legi-

timately abated by the fact of an arrest.” In United States v.

Edwards, supra, for example, the Court upheld the war-

rantless, probable cause search and seizure of an arrestee’s

clothing some 10 hours after his arrest. The Court con-

cluded that the search was justified as incident to the arrest.

But it also stressed the fact that the seizure was supported

by probable cause, and it quoted with approval from the

First Cireuit’s decision in United States v. DeLeo, supra,

422 F. 2d at 493, to explain why a warrant was unnecessary

in the circumstances:

While the legal arrest of a person should not destroy

the privacy of his premises, it does— for at least a

reasonable time and to a reasonable extent—take his

own privacy out of the realm of protection from police

interest in weapons, means of escape, and evidence.

Under the reasoning of Robinson and Edwards, then, and

in light of the specific situation to which Chimel was di-

rected, the search of respondents’ footlocker without a

warrant following their arrest was reasonable. The police

had probable cause both to arrest respondents and to search

the footlocker, and the reason for the search was “closely

related to the reason [respondents were] arrested.” *“* There

was therefore no danger of the kind of pretextual use of

an arrest for an exploratory search that had prompted the

limitation imposed by Chimel. Moreover, for the short

duration following their arrests and the search of the foot-

locker, respondents’ arrests took their “privacy ont of the

realm of protection from police interest in weapons, means

of escape, and evidence,” so that the inhibitions upon the

search were insufficiently great to require a judicial deter-

mination of probable cause in advance. In sum, the agents’

conduct satisfied the test of reasonableness under the

Fourth Amendment.

United States v. Edwards, supra, 415 U.S. at 806, quoting

Cooper v. California, supra, 386 U.S. at 61.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JANUARY 1977.

Daniet M. FriepMan,

Acting Solicitor General.

Ricuarp L. TRHORNBUnOR,

Assistant Attorney General.

KENNETH S. GELLER,

Assistant to the Solicitor General.

Swxxr M. Guazer,

MicRAkL. W. FARRELL,

Attorneys.

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