Amicus Brief — United States v. Chadwick

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, supreme Cout, U. & 2

oie BIL ED

| Ocroser Term, 1976

No. 75-1721

—S>—

Unitep States or Amzrica,

Petitioner,

—V =

JosepH A. CHapwick, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE AMERICAN CIVIL LIBERTIES

UNION AND THE CIVIL LIBERTIES UNION OF

MASSACHUSETTS, AMICI CURIAE

Jorn M. Gora

Jack D. Novix

' Hetene M, FREEMAN

- American Civil Liberties Union

22 East 40th Street

New York, New York 10016

JoHN REINSTEIN

Civil Liberties Union of

Massachusetts

68 Devonshire Street

Boston, Massachusetts

Attorneys for Amici Curiae

RECORD PRESS, INC., 95 MORTON ST., NEW YORK, N. Y. 10014—(212} 243-5775

]

TABLE OF CONTENTS

Table of Authorities...... ecccccecceccce enecccce

Interest Of AMiCi......-eeeeeeeseeees ce ceeses

Statement of the Case........ eccccecccccoccece

Summary of Argument............ eocetese cecece

Dé © 6666 6b 6 66 6 66 006 00066666 OO RCO OO CeSES

a. oe a whe aS oe b Beeb eee tees

THE WARRANTLESS OPENING OF LOCKED

PERSONAL PROPERTY VIOLATES THE FOURTH

FREE 6c bb eb OC OSHS OCC SESSSECEBOEOBO OSC CS*S

There is a SS expectation of

privacy in locked trunks and closed con-

tainers, wherever found, which is pro-

tected by the Fourth Amendment.........

The Fourth Amendment requires prior

judicial determination of probable

cause and the scope of search..........

1. Authorization of the search........

2. Scope of the search.....cccseceeees

3. Inadequacy of the alternatives.....

There is no justification for creation

of an exception to the warrant re-

quirement for closed containers........

1. Adherence to the warrant require-

ment would not frustrate the

governmental purpose in searching

Closed CONtainersS.....eeeeeceevcces

= ee Cie oe

2. The warrantless search of

respondents’ trunk cannot be

justified as a valid search

incident to arrest........ TYTTTLTT

D. The history of this Court’s Fourth

Amendment jurisprudence requires

adherence to the warrant requirement...

CONCLUSION.... *enereeeeseee#e#e8e#8e#e eseeneeeeteee#*#6s6e#seseeeee#eee#es

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v. United States, 413 U.S.

266 EE 20 cbbsbbbsc Oks seuewiee dee es 10,

Agnello v. United States, 269 U.S. 20

(SPSOP cc ccescvecées TRYTTCTE VT TTT TTT Te

Beck v. Ohio, 379 U.S. 89 (1964)........ 3,

Blount v. Rizzi, 400 U.S. 410 (1971)....

Boyd v. United States, 116 U.S. 616 (1886) S,

Camara v. Municipal Court, 387 U.S. 523

EBOOTE ove6s eoeseoccccccsssocosscoese Be AZ, 13,

Cardwell v. Lewis, 417 U.S. 583 (1974)..

Carroll v. United States, 267 U.S. 132

CASED 6 6 6666 CCCCAN Awe O68 odds SOMES KE 19,

Chambers v. Maroney, 399 U.S. 42 (1970).19 20,

Chimel v. California, 395 U.S. 752 (1969)

4, 14, 23, 24,

Connally v. Georgia, 45 U.S.L.W. 3461

(U.S. Jan. ll, gg Pee Pe ee

Coolidge v. New Hampshire, 403 U.S. 443,

(1971) 3e 4, 3,.312, 13, 15, 12, 186, 20, 24,

iii

Ex Parte Jackson, 96 U.S. 727 (1878)....

Freedman v. Maryland, 380 U.S. 51 (1965)

G.M. Leasing Corp. v. United States,

45 U.S.L.W. 4093 (U.S. January ll,

C2977) cccce *eeees e*eeeeeeeeeeeeenseeeeeeee

Harris v. United States, 331 U.S. 145

CASS T) ccocccsceeeecesccessesceeceooooes

Henry v. United States, 361 U.S. 98

(1959)... cee eeneee eoeeeeeveeeeeeeeveeeeeeneee

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

(1948) .. cc ccccccccccevesececes -3, ll, 12,

Katz v. United States, 389 U.S. 347 (1967)

22, 26

3, 5, 6, 7, 8, 12, 15, 26

Leach v. Three of the King's Messengers,

19 How. St. Tr. 1001 (1765)... cece

Mapp v. Ohio, 367 U.S. 643 (1961).......

Marron v. United States, 275 U.S. 192

(1927) .ccccccccccccccccccccessvecseces

McDonald v. United States, 335 U.S. 451

(1948) .. cc ccccccccccccccecccccesecccccs

Olmstead v. United States, 277 U.S. 438

(1928) . cc ccccccccccccccceccceseccccscces

Papachristou v. City of Jacksonville, 405

U.S... 156 (1972)... cccccccccccccccccccs

Reid v. Covert, 354 U.S. 1 (1957).......

Shapiro v. Thompson, 394 U.S. 618 (1969)

Sibron v. New York, 392 U.S. 40 (1968)..

South Dakota v. Opperman, 96 S.Ct. 3092

(1976) . cc ccccccccccccvcccssececccccecs

5, 26

19, 21

Taylor v. United States, 286 U.S. 1 (1932) 4, 18 Other Source

ere ramet —

Terry v. Ohio, 392 U.S. 1 (1968).......2, 5, 9, 16 | Rehnquist,"Privacy and Effective Law

Enforcement," 23 Kansas L. Rev. 1

Texas v. White, 423 U.S. 67 (1975) (per ERSTE) ccvassesececsoces bobb 6 6eO0 0 66680666 6

curiam)..... erry ss UCETTTITTT TCT TTT 20

United States v. Garay, 477 F.2d 1306 |

(5th Gat. pep eee evee eee eeer eee eee 13 .

United States v. Guest, 383 U.S. 745

CRs o6éhd at hh 05 66 U6 SES bee RES Sew S es 7)

United States v. Jeffers, 342 U.S. 48

cROER4 evi decavabekineeeees “ee eeee eee Be 4, 18

United States v. Lefkowitz, 285 U.S.

452 SRaeee wh hs 6b SGue bets weed *e © © *eefe ll

United States v. Ortiz, 422 U.S. 891

ESV ee avtveseveds *eeeee eoeeeeeeeevneeeene Se 26

United States v. Palazzo, 488 F.2d 942

Ga Gaels BEPOlc6 die obs sh0060s bab eee ee 13

United States v. Pabinowitz, 339 U.S. 56

eo erry ery ee oe ee ree Te er ore - > 24, 26

RE ON ns ON OE oe OW pes were

United States v. Ramsey, No. 76-167...... 8

United States v. Robinson, 414 U.S. 218

CRUE ad Ced 6 Vues kus eth eid Ss Chew ek oS o 23, 24

United States v. Rothman, 492 F.2d 1260

(9th Cir. BP Vas co eatteweabeckiic bend Meeks 24

eee eee es nares

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

249 LEP FOR 0 os cewecnc 6s bucebevsetosuwdds ve 8, 18 :

United States v. United States District

Court, 407 U.S. 297 CReeD bbaewes db0¢6

3, 410, 12, 15, 17, 26, 28

Wolf v. Colorado, 338 U.S. 25 (1949).... 26

OS OL OR ee OE Se SE eR ST: TR TS Oe TE TE IR ER eee aR Re Dee Re ae EE EES Ee

em ee ee

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ania ttl’, es ee

IN ThE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 75-1721

UNITED STATES OF AMERICA,

Petitioner,

JOSEPH A. CHADWICK, et al.

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE AMERICAN CIVIL

LIBERTIES UNION AND THE CIVIL

LIBERTIES UNION OF MASSACHUSETTS,

AMICI CURIAE

Interest of Amicil

The American Civil Liberties Union is a nation-

wide, nonpartisan organization of over 250,000

members, dedicated solely to defending the principles

embodied in the Bill of Rights to the Constitution.

The Civil Liberties Union of Massachusetts is the

1. Letters of Consent from all parties to the fil-

ing of this brief have been lodged with the Clerk

of the Court.

Massachusetts State affiliate of the American Civil

Liberties Union.

Central among the protections of the Bill of

Rights are the safeguards of privacy set forth in

the Fourth Amendment. That Amendment erects a

critical barrier between the government and the

citizens, with well-defined procedures and standards

which the government must follow whenever it seeks

to intrude upon the "right of the people to be

secure in their persons, houses, papers, and effects.

In recent years, the Fourth Amendment's barrier

has, regrettably, been lowered considerably. The

ACLU has repeatedly urged the Court to resist such

"hydraulic pressures" to weaken the right of privacy

which Mr. Justice Douglas warned against in Terry

v. Ohio, 392 U.S. 1, 39 (1968). Now, once again,

an assault on the Fourth Amendment is being made,

this time in an effort to limit the warrant require-

ment to searches of homes, offices and private

communications, turning it into the exception rather

than the rule. We submit that the values protected

by the Fourth Amendment require the rejection of

this most recent effort to render the right of

privacy largely meaningless.

Statement of the Case

This case involves the warrantless search of a

200-pound double-locked footlocker, resulting in the

discovery of a large quantity of marijuana. The

district court granted respondents' motions to

suppress, ruling that the warrantless search of the

footlocker fell within neither the automobile nor

the search incident to an arrest exceptions to the

warrant requirements. The Court of Appeals affirmed

the suppression of the marijuana, holding that the

search of the footlocker could not be justified as

a valid search incident to arrest. It declined to

create a new "luggage" exception to the warrant

requirement.

ee nak ON ET tie ae et Be Bao Ome

2 ee nee _—

Summary of Argument

Under established Fourth Amendment principles,

a locked trunk or other closed container is fully

protected by the warrant requirement. Law enforce-

ment officers may not conduct a search of the con-

tents without a warrant, irrespective of where the

trunk or container is found.

The owner of an opaque, double-locked trunk

has a justifiable expectation that the contents will

remain private and unexposed, even in publicly accessible

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

(1970); Katz v. United States, 389 U.S. 347 (1967);

Ex Parte Jackson, 56 U.S. 727 (1878).

The Fourth Amendment requires that a disinter-

ested judicial officer determine that there is

probable cause to conduct a search and the permis-

sible scope of the search. It precludes reliance

on the judgment of law enforcement officers. United

States v. United States District Court, 407 U.S. 297

; Coolidge v. New Hampshire, 403 U.S. 443

(1971); Camara v. Municipal Court; 387 U.S. 523

(1971); Johnson v. nites States, 333 U.S. 10 (1948).

Post-search review is not an adequate substitute for

prior judicial determination. United States v.

United States District Court, supra; Coolidge v.

New Hampshire, supra; Beck v. ohio. 3 U.S. 89 (1964).

There are no exigent circumstances requiring

the creation of an exception to the warrant require-

ment for locked trunks and closed containers. Adher-

ence to the warrant procedure would not frustrate

the achievement of any legitimate governmental pur-

pose for measures to maintain the status quo pending

the application for a search warrant are readily

available. Moreover, such measures are constitu-

tionally required, for temporary control over trunks

and closed containers is less intrusive of individ-

ual privacy than search of their contents. United

States v. Van Leeuwen, supra; Coolidge v. New Ham-

Shire, supra; United States v. Jeffers, 342 U.S.

48 (1951); Tayior v. United States, 286 U.S. l

(1932).

The factors and conditions which have been used

to justify warrantless automobile searches are inap-

plicable to locked, opaque trunks and other closed

containers. Even if automobiles can be considered

analogous to locked trunks and closed containers,

the automobile search exception does not apply to

searches of automobiles where there is no possibil-

ity of removal or tampering. Coolidge v. New Hamp-

shire, supra.

Finally, a 200-pound double-locked footlocker,

several feet away from the arrestee, over which law

enforcement agents have control, having seized the

keys, is not within the immediate control of the

arrestee. A search of an area from which weapons or

destructible evidence can not be obtained is not a

valid search incident to an arrest. Chimel v.

California, 395 U.S. 752 (1969). The same test of

immediate control” applies whether the item seized

and searched is located in a building or out of doors.

Coolidge v. New Hampshire, supra; Chimel v. Califor-

nia, supra. e broader definition of “area of

contro or which the Government argues has been

expressly rejected as unsound. Chimel v. California,

supra.

ARGUMENT

Introduction

The interests protected by the Fourth Amend-

ment are squarely involved in this case and sévere-

ly jeopardized by the Government's assertions. The

essential purpose of the Fourth Amendment, as re-

cognized in countless decisions of this Court, is

"to maintain inviolate"? the privacy and security

of individuals. See, e.g., United States v. Ortiz,

422 U.S. 891, 895 (1975); Camara v. Municipal

Court, 387 U.S. 523, 528 (1967); Boyd v. United

States, 116 U.S. 616, 630 (1886). This protection

Of individual privacy is basic to a free society

and one of the unique values of our constitutional

democracy. McDonald v. United States, 335 U.S.

451, 453 (1948). The protections afforded by the

Fourth Amendment apply to people wherever they har-

bor a justifiable expectation of privacy, Katz v.

United States, 389 U.S. 347 (1967), and the prohi-

bitions of the Fourth Amendment act as a bar to all

governmental invasions of that privacy. See, e.g.,

rerty v. Ohio, 392 U.S. 1 (1968); Boyd v. United

tates, supra at 630.

Whenever governmental officers seek to intrude

upon individual privacy, the Fourth Amendment em-

bodies a set of well-defined procedures and stan-

dards which must be followed. The cornerstone of

this scheme is the warrant requirement, for "the

most basic constitutional rule in this area is

that '...searches conducted outside the judicial

process, without prior approval by judge or magis-

trate, are r se unreasonable....'" Coolidge v.

New Hampshire, 403 U.S. 443, 454-455 T1571) tquot.ing

from Katz v. United States, supra at 357).

The issues in this case must be addressed with

these principles in mind.

2. Mapp v. Ohio, 367 U.S. 643, 657 (1961).

THE WARRANTLESS OPENING OF

LOCKED PERSONAL PROPERTY

VIOLATES THE FOURTH AMENDMENT.

Under established principles of Fourth Amend-

ment jurisprudence, a locked trunk or other closed

container is fully protected by the warrant require-

ment. So long as the owner reasonably expects the

contents to remain unexposed, police officers may

not conduct a search of those contents without a

warrant, irrespective of where the trunk or con-

tainer is found.

A. There is a justifiable expectation of privacy

in locked trunks and Slcead contains ae

ever found, which is protected by the Fourth

Amendment.

The Fourth Amendment embodies a concept of

personal privacy the scope of which extends to all

items which an individual justifiably expects will

be shielded from public view. As Justice Rehnquist

has written, the protection encompasses "items the

individual Owner or possessor has chosen to keep

private and away from prying eyes, either officiai

or unofficial." Rehnquist, "Privacy and Effective

Law Enforcement," 23 Kansas L. Rev. 1, 4 (1974).

Thus, the reasonable expectation of the owner or

possessor is a key factor in determining the appli-

cability of Fourth Amendment protections.

In Katz v. United States, supra, this Court

held that an individual ina c1ge8e” pebiic phone

booth was entitled to the full panoply of Fourth >

Amendment protections. The Court rejected an

analysis limiting the scope of constitutional pri-

vacy to "protected areas," holding that it was the

intention of the individual that triggered Fourth

Amendment protection:

For the Fourth Amendment protects people,

not places. What a person knowingly ex-

poses to the public, even in his own home

or office, is not a subject of Fourth

Amendment protection. But what he seeks

to preserve as private, even in an area

accessible to the public, may be consti-

tutionally protected. (Footnotes omit-

ted). Katz v. United States, supra at

351. :

The reasonable expectation of privacy analysis

has been consistently applied to closed packages

and containers for nearly 100 years. In Ex Parte

Jackson, 96 U.S. 727 (1878), the Court found uncon-

stitutional a warrantless search of first class

mail. Because the sender had sealed papers inside

an opaque container, he expected those papers to be

shielded from public view, and Fourth Amendment

protections were fully applicable.

Letters and sealed packages of this kind

in the mail are as fully guarded from ex-

amination and inspection, except as to

their outward form and weight, as if they

were retained by the parties forwarding

them in their own domicils. The consti-

tutional guaranty of the right of the

people to be secure in their papers against

unreasonable searches and seizures extends

to their papers, thus closed against in-

spection, wherever they may be. 96 U.S.

at 733.

A century later the same rationale was applied

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

(1970), where a unanimous Court found that a

sealed, first class mail package marked "COINS"

deserved full Fourth Amendment protection. The

sender's interest was in the privacy of the con-

tents of the package. Despite the clear marking

on the outside of that package, any government in-

trusion into the expected area of privacy within

the package was forbidden without a search warrant.

397 U.S. at 253.

For the same reasons, an individual who places

his personal effects inside an opaque trunk and

double locks that trunk has a justifiable expecta-

tion that the contents will remain private. Closed

against official or unofficial inspection, the con-

tents are protected regardless of the fact that the

trunk is located in a publicly accessible area.

This conclusion is compelled by the holding in Katz

v. United States, supra.

The Government seeks to avoid this conclusion

by contending that Katz, supra, Ex Parte Jackson,

supra, and Van Leeuwen, supra, stand for the propo-

Sition that Only private communications3 via tele-

phone and first class mail are within the scope of

privacy protected by the Fourth Amendment. But

there is nothing in any of these cases to indicate

that the Court contemplated such a severe limita-

tion. Indeed, it would be nonsensical to find, as

the Government theory implies, that an individual's

privacy interest in a sealed package is secure only

when that package is in the hands of federal em-

ployees, i.e. postal officers. See, e.g., Ex Parte

Jackson, supra. The individual on his way to or

from the post office, and the individual who deli-

vers his own package or sends it via a private

carrier, should both be accorded full Fourth Amend-

ment protection.

A theory that the Fourth Amendment only pro-

tects private communications cannot possibly ex-

plain the Court's unanimous decision in Van Leeuwen,

Supra. No communications of any sort, written or

oral,

were involved as the package clearly indicated

3. Although the Government in this case takes the

position that private communications are within

the "core" of privacy protected by the Fourth

Amendment, in United States v. Ramsey, No. 76-167,

the Government has taken a contrary rosition that

there is ro privacy interest in international com-

munications and that such communications may be

searched absent a warrant, probable cause or even

reasonable suspicion.

it contained only coins. A warrantless search was

forbidden because the sender expected the contents

to remain unexposed.

The Government's position would leave the in-

dividual secure in his personal belongings only

when he is within a home or office. This is a po-

sition that this Court has resolutely rejected by

holding that the Fourth Amendment "belongs as much

to the citizen on the streets of our cities as to

the home owner closeted in his study to nog mag of

his secret affairs." Terry v. Ohio, supra a

8-9 (1968). Moreover, such a narrow definition of

privacy is totally unworkable in a vibrant, mobile

society. Our citizens are constantly making trips

which require the movement of personal belongings.

If the individual has a reasonable expectation of

privacy only in his home, his right to move about

in society becomes severely limited. Moving from

one home to another, or from home to office, would

entail a serious surrender of privacy.

The Government concedes that probable cause

is required to search the contents of locked trunks

and closed containers, in effect conceding that the

owner has a justifiable expectation of privacy in

4. The right to travel has been accorded consti-

tutional status by this Court. See Shapiro v.

Thompson, 394 U.S. 618 (1969); United States v.

Guest, 383 U.S. 745 (1966).

5. Restrictions on outdoor privacy would also

discriminate against those who have no fixed dwel-

ling. The nonconformists in America who live in

mobile homes, who live in cars, or who simply

carry all their belongings with them, deserve the

same personal privacy with respect to papers and

effects as do more conventional citizens. See

Papachristou v. City of Jacksonville, 405 U.S. 156,

ote ’ (1972).

these belongings. Petitioner would, however, sep-

arate the probable cause requirement of the Warrant

Clause from the procedure for judicially predeter-

mining the existence of probable cause. Amici

submit that the two are inseparable for probable

cause means judicially determined probable cause.

Deviation from the warrant requirement may be ex-

cused only upon a convincing showing that warrant-

less search is imperative.

B. The Fourth Amendment requires prior judicial

determination of probable cause and the scope

of search.

Though it is now “axiomatic” that the warrant

is paramount in the protection of individual pri-

vacy, Almeida-Sanchez v. United States, 413 U.S.

266, 277 (1973) (Powell, J. concurring), the Govern-

ment seeks to eliminate the warrant requirement in

all searches conducted outside the home or office.

But the Warrant Clause “touches the very heart" of

the Fourth Amendment, United States v. United

States District Court, 407 U.S. 297, 316 (1972),

and without its protections, individual privacy is

jeopardized.

1. Authorization of the search

While conceding that probable cause is re-

quired to search personal property, it is the

Government's position that the law enforcement of-

ficer's determination of probable cause is suffi-

cient protection against the initiation of unrea~

sonable searches. Amici submit that the purpose

of the warrant requirement and the decisions of

this Court construing and applying it eschew reli-

ance on executive determination of probable cause

and firmly establish that the essence of the Fourth

Amendment's protection against unreasonable search-

es lies in the determination of probable cause by

a neutral, judicial official.

The reason for the rule requiring adherence

to judicial process emerges from the purpose of the

Fourth Amendment. It prohibits governmental breach

of individual privacy absent a showing of compel-

ling public necessity expressed in terms of “prob-

able cause." Probable cause is an objective stan-

dard which requires a careful, dispassionate eval-

uation of the available facts which make the pro-

posed official action reasonable.

The duty and responsibility of executive offi-

cials is to enforce the law by investigating and

prosecuting those suspected of unlawful acts. Be-

cause of the nature of these responsibilities, of-

ficers have a subjective interest in obtaining evidence.

They are likely, due to the ineluctable pressures

of their duties, to overestimate the necessity for

search and undervalue the individual's privacy in-

terest. Consequently, it is inappropriate to rely

upon them to make the careful, objective determina-

tion of probable cause required by the Fourth

Amendment.

Even English law predating the Constitution

proclaimed that "it is not fit that the receiving

or judging of the information should be left to

the discretion of the officer." Leach v. Three

of the King's Messengers, 19 How. St. Tr. 1001,

1027 (1765) Similarly, this Court has repeatedly

recognized that security against unlawful searches

cannot be maintained by reliance on the judgment

of officials engaged in the competitive enterprise

of the pursuit of crime. E.g., Johnson v. United

States, 333 U.S. 10, 14 (1 ; United States v.

Lefkowitz, 285 U.S. 452, 464 (1932).

Thus, the chief function of the warrant re-

quirement is to take the determination of the ex-

istence of probable cause for the initiation of a

search out of the hands of law enforcement offi-

cials and place it in the hands of an objective,

neutral party -- a judicial officer. This Court

has consistently and unwaiveringly recognized that

the essence of the protection afforded by the

Fourth Amendment lies in this requirement of prior

determination of probable cause by a disinterested

magistrate. E.g., United States v. United States

District Court, suplia; Katz v. United States, supra;

Camara v. Municipa ourt, supra at 528- 529, =35-

34; Johnson v. United States, supra. Never has the

determination of probable cause by an executive of-

ficer been deemed to provide adequate protection.

In United States v. United States District

Court, supra, this Court emphasized the importance

of prior judicial determination by holding that a

search authorized by the President undertaken for

the pugpose of safeguarding national security can-

not go forward absent a warrant issued by a judi-

cial officer. As the Court stated: "The Fourth

Amendment contemplates a prior judicial judgment

[of reasonableness], not the risk that executive

discretion may be reasonably exercised" because

“executive discretion may yield too readily to

pressures to obtain incriminating evidence and

overlook potential invasions of privacy." 407 U.S.

at 317. (Footnote omitted.) The same lack of

neutrality has been found fatal to a search warrant

issued by a state attorney general in his capacity

as a justice of the peace. In Coolidge v. New

Hampshire, supra at 450, the Court reemphasized

that "the whole point of the basic rule [requiring

judicial determination that a search is justified]...

is that prosecutors and policemen simply cannot be

asked to maintain the requisite neutrality with

regard to their own investigations -- the 'compe-

titive enterprise’ that must rightly engage their

single-minded attention." (Footnote omittec.)

Only this Term, the Court repeated that the

Fourth Amendment is violated whenever the determi-

nation of probable cause is made by an interested

party. In Connally v. Georgia, 45 U.S.L.W. 3461

(U.S. Jan. 11, 1977), the Court held that a search

pursuant to a warrant issued by a justice of the

peace who had a pecuniary interest in its issuaace

violated the Fourth Amendment.

The warrant requirement may also serve to an-

nounce the officer's authority to search, the need

to search, and the limits of the power to search.

See Camara v. Municipal Court, supra at 532. Al-

though in the instant case, the officers did not

seize the footlocker until it had been claimed by

its owner, the principle which the government urges

would have a broader application. It would apply

to freight delivered to a carrier for transporta-

tion. For instance, it would have applied had re-

spondents shipped the footlocker to Boston without

accompanying it. In such circumstances, a warrant

would serve the valuable function of informing the

third-party carrier:‘of the agent's authority. See,

e.g., United States v. Van Leeuwen, supra; United

States v. Palazzo, 488 F.2d 942 (5th Cir 1974) ;

ee States v. Garay, 477 F.2d 1306 (5th Cir.

3).

2. Scope of the search

In addition to limiting the initiation of in-

trusions on privacy, the warrant requirement serves

the separate and distinct function of confining

within precise limits those searches found to be

necessary. Here, the issue is preventing an other-

wise permissible intrusion from degenerating into

an indiscriminate rummaging through a person's be-

longings. See, e.g., Coolidge v. New Hampshire,

oupee at 467; Marron v. United States; 275 U.S.

, 196 (1927). The Government contends that

there is no danger of a wide-ranging search outside

the home because only small containers with few

items would be subject to search. Brief for Peti-

tioner at 45.

There is absolutely no basis for this asser-

tion. Huge trunks, boxes, and metal containers of

all types are available for the transportation of

personal effects. Indeed, when an individual

changes his residence, he places all his personal

belongings in containers for out-of-doors transpor-

tation. Thus, any single trunk or container may

contain a multiplicity of personal effects. More-

over, any single container may contain other closed

or locked containers. Wherever such a large assort-

ment of personal belongings potentially encompassed

in additional closed containers can be found, there

is a danger of the wide-ranging, indiscriminate

search which the warrant requirement is designed to

prevent.

This case illustrates the fallacy of the Go-

vernment's argument that a warrant is not necessary

to limit the scope of the search of closed contain-

ers. The 200-pound footlocker could easily have

contained all of the owner's worldly goods.© More-

over, the agents did not limit the scope of their

search to the container for which they had probable

cause; they extended it to include additional

closed containers, two suitcases, for which they

concededly did not have probable cause to search.

3. Inadequacy of the alternatives

The Government recognizes that, on occasion,

law enforcement officers will err in their evalua-

tion of probable cause. In these instances, the

Government contends, adequate substitutes for the

warrant requirement are provided by post-search

judicial review and individual damage actions

against the offending officers. This argument,

however, ignores one of the fundamental purposes

of the warrant requirement -- the prevention of

unjustified intrusions upon the privacy of citi-

zens. Chimel v. California, 395 U.S. 752, 767 n.12

(1969). In the first instance, "the magistrate’ =

scrutiny is intended to eliminate altogether

6. That it contained marijuana is irrelevant,

for the agents did not know that until after they

searched it. Giving weight to this fact in effect

would justify the search by what is turned up, an

analysis this Court has steadfastly refused to ac-

cept. See, e.g., Sibron v. New York, 392 U.S. 40,

63 (1968); Henry v. United states, 361 U.S. 98,

103 (1959).

searches not based on probable cause. The premise

here is that any intrusion in the way of search or

seizure is an evil, so that no intrusion at all is

justified without a careful prior determination of

necessity." Coolidge v. New Hampshire, supra at

467.

Even ignoring the preventive function which

the warrant requirement is designed to serve, the

Government's proposed alternatives are still not

adequate substitutes for the warrant requirement.

This Court has repeatedly recognized that post-

search judicial review is not an acceptable substi-

tute for a neutral predetermination of probable

cause. See, e.g., United States v. United States

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

An after-the-fact examination of the circumstances

leading to a warrantless search is inherently less

reliable than an objective predetermination.

Since the Government seeks broad power to

search private property found anywhere outside the

home, it is possible the search may occur in the

absence of the owner. In such a case, the offi-

cer's recollections of the basis for his actions

cannot be tested, for he may be the only witness

to the search. Also, all too often, post-search

hearings are "likely to be subtly influenced by

the familiar shortcomings of hindsight judgment."

Beck v. Ohio, 379 U.S. 89, 96 (1964).

Moreover, post-search review, inadequate as it

is, can never cure or provide redress for unconsti-

tutional searches that reveal no evidence of crime.

The exclusionary rule provides no remedy for the

law-abiding citizen who is the victim of an unjus-

tified intrusion into privacy. To this the Govern-

ment's only answer is that such a person would be

adequately protected because "an officer who acts

without probable cause may be forced to answer in

damages." Brief for Petitioner at 45 n.32. The

Fourth Amendment is a positive restraint on govern-

ment the enforcement of which should not turn on

the ability and desire of individuals to involve

themselves in expensive and time-consuming litiga-

tion. The protection of constitutional rights is

not and should not be the task of the citizen.

Cf., Blount v. Rizzi, 400 U.S. 410 (1971); Freedman

v. Maryland, 380 U.S. 51 (1965). The Fourth Amend-

ment puts the burden on the government.

In sum, the best protection of privacy, espe-

Cially for the poor and unsophisticated who are un-

likely to sue public officials, is a pre-sedrch de-

termination of probable cause by a neutral magis-

trate. :

In effect, the Government contends simply that

the initiation and scope of the search of closed

containers should be determined by the police offi-

cer on the beat, subject only to the good faith

exercise of his discretion in determining the exis-

tence of probable cause and the permissible scope

of search. However, this Court has-consistently

refused to make good faith the measure of the

Fourth Amendment. "[SJimple ‘good faith on the

part of the arresting [or searching] officer is

not enough.’ ...If subjective good faith alone

were the test, the protections of the Fourth Amend-

ment would evaporate, and the people would be ‘'se-

cure in their persons, houses, papers, and effects'

only in the discretion of the police." Terry v.

Ohio, supra at 22.

The purpose of the rule requiring prior judi-

cial authorization fur search is to provide a check

on the exercise of official discretion. Whenever

a police officer selects an object for search he is

exercising discretion and, where feasible, the

Fourth Amendment requires that he obtain pre-search

judicial review of the reasonableness of his action.

C. There is no justification for creation of an

exception to e@ warrant requirement for closed

containers.

The warrant requirement is subject to a ‘few

specifically established and well-delineated excep-

tions.' The exceptions are ‘jealously and carefully

drawn,’ and there must be ‘a showing by those who :

seek exemption...that the exigencies of the situation

made that course imperative.'" Coolidge v. New Hamp~

shire, supra at 455 (footnotes omitted). Recogni-

zing that none of the established exceptions ap-

plies to the search in this case, the Government

urges this Court to create new exceptions. In or-

der to justify the creation of an exception to the

warrant requirement, it is necessary for the

Government to establish, at the very least, that

the warrant procedure would frustrate .the purpose

behind the search. E.g., United States v. United

States District Court, supra at 315; Camara v. Mu-

nicipal Court, supra at . Amici submit that

subjecting the search of closed containers located

in public places to the warrant requirement would

not frustrate any legitimate governmental interest.

1. Adherence to the warrant requirement

would not frustrate the ernmental

purpose in searching eiaeee containers.

The question here is whether the warrant re-

quirement would frustrate the governmental purpose

justifying the search either because a search would

not be possible if not performed immediately or be-

cause a delayed search would not effectuate the in-

tended purpose. Applying this test, the sole cir-

cumstance which purportedly justifies dispensing

with the warrant requirement for searches of closed

containers located in public places is their mobi-

lity -- that they could be removed or tampered with

before a warrant could be obtained.

But there are a variety of ways in which

closed containers may be immobilized, preserving

the status ques until a search warrant may be ob-

tained. This Court has, on a number of occasions, accom-

modated law enforcement interests by permitting po-

lice officers to exercise control temporarily over

closed containers and areas until a search warrant

may be obtained. This procedure adequately satis-

fies the governmental need without completely dis-

pensing with the vital constitutional shield of a

search warrant.

For example, in Taylor v. United States, 286

U.S. 1 (1932), a unanimous Court found unconstitu-

tional a warrantless probable cause search of a

garage located on private property. The Court

ruled that the police had ample opportunity to ob-

tain a warrant without any risk to the evidence

within the garage because officers could stand

guard at the site to prevent tampering. Accord,

United States v. Jeffers, 342 U.S. 48 (1951). The

rationale which underlies the rule permitting tem-

porary police control over private premises is that

it is the least intrusive means of protecting evi--

dence without a complete invasion of privacy. The

greater intrusion by government officials, the ac-

tual search of papers and effects, is forbidden in

the absence of a search warrant.

The temporary control approach is equally a»-

plicable to movable items such as vehicles and

closed containers. Police may place a twenty-four-

hour guard on an automobile in order to prevent

removal, but they may not search witho it a warrant.

Coolidge v. New Hampshire, supra. Lik+ ise, a

closed container concealing personal prwuverty may

be teniporarily held, pending application for a war-

rant. United States v. Van Leeuwen, supra. Postal

authorities, acting on probable cause, detained a.

package labeled "COINS" for 29 hours while a search

warrant was sought. The Court approved this proce-

dure, finding that the package owner's significant

Fourth Amendment interest was in the privacy of the

contents. Accordingly, detention was constitution-

al, although a warrantless search would not have

been.

Thus, this Court has recognized that potential

mobility alone does not justify a warrantless search.

Rather, it has insisted that protection from the

removal or destruction of evidence must be pursued

by police action to preserve the status quo pending

the application for a search warrant. through this

procedure, the governmental purpose in undertaking

a search will not be frustrated.

Despite the recognition that immobilization of

chattel until a warrant is obtained is the minimal-

ly constitutional course, the Government argues,

relying on Chambers v. Maroney, 399 U.S. 42 (1970),

that a full search of the Sontents of a container

‘is as reasonable as a temporary detention or seizure.

To reach this conclusion, the Government fur-

ther contends that locked trunks are analogous to

automobiles for Fourth Amendment purposes. The

automobile exception to the warrant requirement,

however, has been carefully developed and specific-

ally limited, and its rationale is totally inappli-

cable to a locked trunk or other closed container.

The rationale for the exception is twofold.

It stems from the inherent mobility of an automo-

bile, creating circumstances in which, as a prac-

tical necessity, police application for a warrant

might enable a suspect or accomplice to remove evi-

dence. For, example, the officers in Carroll v.

United States, 267 U.S. 132 (1925), stopped defen-

dants" car on a highway with probable cause to

search but without making any initial arrests. In

those circumstances, the officers could not leave

the scene to obtain a warrant, 267 U.S. at 159, and

an on-the-spot search was held to be constitution-

ally valid. The Court has held that an additional

reason for permitting warrantless automobile

searches is that the pervasive state regulation of

vehicles and the public exposure of the inside of

the mete Sepnagh oe windows limit the driver's

expectation of privacy. South Dakota v. Opperman,

96 S.Ct. 3092, 3095-96 (1976).

Where an on-the-spot search is valid under

Carroll, supra, but where conditions at the scene

of the initial seizure would make a search danger-

ous or difficult, this Court has indicated that the

police may transport the automobile back to the

stationhouse and then proceed with the search.

Chambers v. Maroney, supra; Texas v. White, 423

U.S. 78 (1975) (per curiam). Once a right to search

at the scene exists, that right does not disappear

simply because of a police practice designed to

protect officers and the suspect's property. The

warrantless stationhouse search in Chambers, supra,

was constitutionally valid only because of the of-

ficers' power to search at the scene of the origin-

al seizure. Texas v. White, supra.

But the Chambers Court did not, as the Govern-

ment suggests, provide a basis for a repeal of the

warrant requirement in all out-of-doors searches.

The holding was carefully limited to those situa-

tions in which an initial search was permissible.

Far from offering a rationale to justify all war-

rantless, probable cause searches, the Court re-

fused even to find that automobile searches were

totally immune from the warrant requirement:

Neither Carroll, supra, nor other cases

in this Court require or suggest that

in every conceivable circumstance the

search of an auto even with probable

cause may be made without the extra

protection for privacy that a warrant

affords. Chambers v. Maroney, supra

at 50.

The Court did not dgwiate from the established

Fourth Amendment principlé that warrantless search-

es are presumptively unreasonable. "Every word in

the opinion indicates the Court's adherence to the

underlying rule and its care in delineating a lim-

ited exception." Coolidge v. New Hampshire, supra

at 479.

One of the limitations to the automobile ex-

ception was clarified in Coolidge, supra, where the

Court held unconstitutional a RS ee search

of defendant's automobile. The Court found that,

at the time of tne initial seizure of the automo-

bile in defendant's driveway, there were not exi-

gent circumstances to allow the police to search

without a warrant. Defendant was in custody and

his automobile was guarded against tampering.

Though the car was still technically mobile, the

Court refused to attach any constitutional signi-

ficance to the simple fact of mobility since, with

the guard, there was no chance of removal. 403

U.S. at 461.18. Chambers, supra, was found in-

applicable since it held that “where the police

may stop and search an automobile under Carroll,

they may also seize it and search it later at the

police station." Id. at 463 (footnote omitted).

The complete inappropriateness of the automo-

bile exception to this case is made clear by an

examination of the second rationale for the ex-

ception: the limited expectation of privacy.

There obviously could be no state regulation of

trunks that would result in noncriminal examination

and inspection of the sort required for automobiles.

The owner of a trunk can confidently and reasonably

assume that his locked container will not be sub-

ject to the safety or licensing laws applicable to

moving vehicles. Cf., South Dakota v. Opperman,

supra. The owner of the trunk can be certain, by

choosing an opaque container protected by a lock,

that the contents will not be exposed to the pub-

lic. The automobile owner does not have this

choice; the glass windows of his car serve to re-

duce his ability to limit public exposure.

Finally, the primary function of the automo-

bile is transportation. It "seldom" serves as a

“repository of personal effects." Cardwell v.

Lewis, 417 U.S. 583, 590 (1974). In sharp contrast,

the primary and only function of a locked trunk is

to serve as a secure repository of personal effects.

It is apparent that requiring adherence to the

warrant requirement in situations where warrantless

temporary detentions are permissible would not in

any way frustrate the legitimate law enforcement

objectives of the police. There is no danger that

the evidence would disappear. Moreover, the warrant

requirement does not impose any insuperable impedi-

ment to effective law enforcement since the author-

ity to undertake warrantless searches is no greater

than the authority to search with a warrant. Facts

amounting to probable cause for a warrantless

search will always justify the issuance of a war-

rant. There is no burden on the state to meet this

requirement except the inconvenience to the officers

and the delay necessary to prepare the papers and

present the evidence. Johnson v. United States,

supra at 15. Inconvenience can never be the measure

of the duty to obtain a search warrant.

The concept that the Bill of Rights and

other constitutional protections against

arbitrary government are inoperative

when they become inconvenient or when

expediency dictates otherwise is a very

dangerous doctrine and if allowed to

flourish would destroy the benefits of

a written Constitution and undermine

the bases of our Government. Reid v.

Covert, 354 U.S. 1, 14 (1957).

2. The warrantless search of res

cannot be justified as a va

to arrest.

ndents' trunk

search incident

The search of respondents' 200-pound, double-locked

footlocker, which federal agents had not seen opened,

was constitutionally broader than a permissible search

incident to arrest. Recognizing this the Government

contends that a broad "area of control" standard should

be adopted for the search of personal belongings located

outside the home. This approach is inconsistent with the

rationale of the search incident to arrest exception and

at odds with many rulings of this Court.

tified by the inherent necessities of the situation at

the time of arrest. The arresting officer is permitted

‘

a limited search to prevent access to weapons and

destructible evidence. Chimel v. California, supra.

This general exception to the warrant provision in-

volves two distinct branches: search of the person

of the arrestee and search of the area within the

immediate control of the arrestee. United States v.

Robinson, 414 U.S. 218, 225 (1973). The latter search is,

by definition, limited to a search of the area "into

which an arrestee might reach... . the area from

within which he might gain possession of a weapon or

destructible evidence." Chimel v. California, supra

at 763.

A double-locked trunk several feet away from

the arrestee, which the officers had never seen opened

and which they had control over, having seized the

keys, cannot be within the area so defined. The facts

indisputably establish that there was no danger what-

ever that the arrestees could have reached into the

locked footlocker, and the Government has offered no

plausible basis for making this assumption.

The Government's broad test of "area of control"

is identical to that applied by the Court in United

States v. Rabinowitz, 339 U.S. 56 (1950) and Harris

v. United States, 331 U.S. 145, 164 (1947). But

both of these cases were expressly overruled as

unsound in Chimel v. California, supra. Thus, for

constitutional purposes, an arrestee is in possession

only of those items on his person or within his immed-

iate control. Searches into closed drawers and con-

tainers beyond the reach of the arrestee, as in this

case, may be made only under authority of a warrant.

Chimel v. California, supra at 763.

The Government attempts to distinguish Chimel,

supra, on the grounds that the agents in the instant

case had probable cause both to arrest the defendants

and to suspect that the trunk contained contraband,

and that the trunk was found outside

the home. Brief for Petitioner at 57. In these cir-

cumstances, the Government would place no limitation

on the agents’ right to search; all of an arrestee's

possessions, regardless of their proximity to the

place of arrest, would be subject to warrantless,

probable cause search.

This Court has not signaled any retreat from

Chimel and has not restricted its application to

indoor searches. Chimel has been cited with approval

in situations not involving a search of a dwelling,

see e.g.,; United States v. Robinson, supra at 225-26,

and lower courts have readily assumed its applica-

bility to all arrest situations. See, e.g. United

States v. Rothman, 492 F.2d 1260, 1265-66 (9th Cir.

1973); United States v. Colbert, 454 F.2d 801 (5th

Cir. 1972), rev'd on other grounds, 474 F.2d 174

(1973) (en banc).

Indeed this Court has, when reviewing similar

factual situations, rejected the Government position.

The police in Coolidge v. New Hampshire, supra, had

probable cause both to arrest and to search, yet the

Court refused to allow a search of personal effects

found outside the home. 403 U.S. at 473. The Court

indicated that "[t]here can be no question that after

Chimel such a search could not be justified as ‘inci-

dent’ to the arrest. . . ." 403 U.S. 457 n. 11.

Since Chimel applied only prospectively, however,

Coolidge v. New Hampshire, supra, was decided under

pre-Chimel law and applied the broader area of con-

trol doctrine of United States v. Rabinowitz, supra.

That is, Coolidge applied the precise standard for

which the Government here contends and the search

nonetheless was found unconstitutional.

The Chimel court explicitly answered the Govern-

ment's indoor-outdoor distinction:

No consideration relevant to the Fourth Amend-

ment suggests any point of rational limitation,

once the search is allowed to go beyond the area

from which the person arrested might obtain

weapons or evidentiary items. The only reasoned

distinction is one between a search of the per-

son arrested and the area within his reach on

the one hand, and more extensive searches on

the other. 395 U.S. at 766 (footnotes omitted).

Re eee ee |S ee an ee en

CA A a A LORIE AD OOF.

vee ess

Chimel's limitation on the scope of a search

incident €0 arrest cannot be overcome by arbitrary

distinctions that have no constitutional significance. 7

As the Court in Chimel recognized, there is "no

reason why, simply because some interference with

an individual's privacy and freedom of movement has

lawfully taken place, further intrusions should auto-

matically be allowed despite the absence of a warrant

that the Fourth Amendment would otherwise require."

395 U.S. at 766 n. 12. Inasmuch as the footlocker was

not within the area from which a weapon or evidence

could be obtained, the warrantless search cannot be

justified as a valid search incident to arrest.

D. The history of this Court's Fourth Amendment

jurisprudence requires adherence to the warrant

requirement.

For its argument that warrantless searches are

not per se unreasonable under the Fourth Amendment,

the Government relies on its reading of the history

which led to the Amendment's adoption. What the

Government ignores is the 100 years of this Court's

Fourth Amendment jurisprudence construing and apply-

ing the rights guaranteed. Amici submit that the

7. %It should be noted that the arrest was warrant-

less and it was the probable cause to believe the

footlocker contained contraband which provided the

basis for the arrest. In terms of the Fourth Amend-

ment's warrant requirement, it could be argued that

Chimel presented a stronger case for a warrantless

search because the arrest was made pursuant to a

valid warrant. Thus, a neutral magistrate had deter-

mined the existence of probable cause, a factor

totally absent in the instant case.

8. Amici do not agree with the Government's his-

torical interpretation, however, a point-by-point

refutation is unnecessary for it is the construction

and application of the Fourth Amendment by this Court

that is the significant and controlling history.

answer to the question presented is to be found in

this jurisprudential history.

This Court has repeatedly emphasized that there

are two fundamental principles embodied in the

Fourth Amendment. First, the “basic purpose of this

Amendment, as recognized in countless decisions of

this Court, is to safeguard the privacy and secur-

ity of individuals against arbitrary invasions by

governmental officials." Camara v. Municipal Court,

supra at 528. E.g., United States v. Ortiz, supra

at 5; United States v. United States District

Court, supra at 312-313; Mapp v. Ohio, 367 U.S.

643, 65 61); Wolf v. Colorado, 338 U.S. 25, 27

(1949); McDonald v. United States, supra at 453;

Boyd v. United States, supra at 630. S Justice

randeis proclaimed, “as against the government, "

the Fourth Amendment confers "tho right to be let

alone--the most comprehensive of rights and the

right most valued by civilized men." Olmstead v.

United States, 277 U.S. 438, 478 (1928) (dissenting

opinion).

Second, the Fourth Amendment's warrant require-

ment embodies the principle that the determination

of when that right to privacy must yield is to be

alres by a judicial officer and not a law enforce-

ment agent. E.g., G.M. Leasing Corp. v. United

States, 45 U.S.L.W. 4098, 4102 (U.S. January II,

1977); Almeida-Sanchez v. United States, 4135 U.S.

266, 279-285 (1 Powell, J., concurring);

United States v. United States District Court,

Supra; Katz v. United States, Supra; Camara v.

Municipal Court, supra at 528-29, 533-34; United

States v. Rabinowitz, supra at 82) (Frankfurter,

J. dissenting); McDonald v. United States, supra;

Johnson v. United States, supra. Accordingly,

"Tslearches conducted without warrants have been

held unlawful ‘notwithstanding facts unquestionably

ee probable cause' .. ." Katz v. United

ates, supra at 357 (quoting from A nello v. United

States, x65 U.S. 20, 33 {1925)). So Fenty established

is this principle that this Court has stated: "(T]he

most basic constitutional rule in this area is that

‘searches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment. .. .-"

Coolidge v. New Hampshire, supra at 454-455.

It is this rule which the Government here chal-

lenges. It argues, in effect, that searches without

warrants are per se reasonable subject only to three

exceptions--the search of a home, office or private

communications. It argues that the Court really did

not mean what it said in Coolidge v. New Hampshire,

supra, and that the authors OF tie Bill of Rights

aT not intend such a rule. It is sufficient re-

sponse to this argument to quote the Coolidge Court's

answer:

In times of unrest, whether caused by crime or

racial conflict or fear of internal subversion,

this basic law and the values that it represents

may appear unrealistic or "extravagant" to some.

But the values were those of the authors of our

fundamental constitutional concepts. In times

not altogether unlike our own they won-~-by

legal and constitutional means in England, and

by revolution on this continent--a right of

personal security against arbitrary intrusions

by official power. If times have changed,

reducing everyman's scope to do as he pleases

in an urban industrial world, the changes have

made the values served by the Fourth Amendment

more, not less, important. 403 U.S. at 455

(footnotes omitted).

The government argues further that the opportun-

ity to procure a warrant is immaterial and that the

relevant test under the Fourth Amendment is whether

the search was reasonable. There is no better

response to this argument than that given by Justice

Powell:

This view, however, overlooks the second clause

of the Amendment. The warrant clause of the

Fourth Amendment is not dead language. Rather,

it has been "a valued part of our constitutional

law for decades, and it has determined the re-

sult in scores and scores oi cases in courts

all over the country. It is not an inconven-

jence to be somehow "weighed" against the claims

of police efficiency. It is, or should be, an

important working part of our machinery of

government, operating as a matter of course

to check the 'well-intentioned but mistakenly

overzealous executive officers’ who are a

part of any system of law enforcement." United

States v. United States District Court, 4

U.s. at 315-16.

The Fourth Amendment arose as a response to

arbitrary government intrusion into individual

privacy. It is couched in general. terms as a broad

restraint on all forms of official intrusion. In

over 100 years of Fourth Amendment jurisprudence,

this Court has defined and applied the Amendment's

general principles. It is the history of that juris-

prudence which must guide the resolution of the

issues posed by this case, and that history compels

the conclusion that a warrant is required before

law enforcement officials may search closed containers

and locked trunks.

CONCLUSION

For the reasons set forth above, the judgment

of the Court of Appeals should be affirmed.

Respectfully submitted,

JOEL M. GORA

JACK D. NOVIK

HELENE M. FREEMAN

American Civil Liberties

Union

22 East 40th Street

New York, New York 10016

JOHN REINSTEIN

Civil Liberties Union of

Massachusetts

68 Devonshire Street

Boston, Massachusetts

Attorneys for Amici Curiae*

March 1977

*Attorneys for amici wish to express their apprecia-

tion to Richard Sauber, a third-year student at New

York University Law School, for his assistance in

the preparation of this brief.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.