# Amicus Brief — United States v. Chadwick

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0011%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1977
- **Citation:** 433 U.S. 1

## Text

, 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
>

]

i

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

A.

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

16

17

ii
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,

22

25
29

26

26
15
16
26

26
21

21
21

25

12

27

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)

3,

16

26

23

14

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

1l

5, 26

13

5, 26

22

14

19, 21

iv

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

me néue~
ania ttl’, es ee

IN ThE
SUPREME COURT OF THE UNITED STATES

October Term, 1976
No. 75-1721

UNITED STATES OF AMERICA,

Petitioner,
ve

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.

2

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

a

2 ee nee _—

3

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.

5
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).

6

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

5

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.

9

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).

10

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

1l

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

12

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-

¢

13

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

14

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).

15

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

16

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

17

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-

18

*

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.

19

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

20

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

21

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

22

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.
The warrantless search incident to arrest is jus- ©
tified by the inherent necessities of the situation at
the time of arrest. The arresting officer is permitted

‘

a>

23

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

24

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

25

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.

26

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

27

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

28

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.

29

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0011%3A7. Public record. Not legal advice.