Respondents Brief — Arkansas v. Sanders

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1497

STATE OF ARKANSAS, Petitioner,

Vv.

LONNIE JAMES SANDERS, Respondent.

ON WRIT OF CERTIORARI TO THE

S™LPREME COURT OF ARKANSAS

BRIEF FOR RESPONDENT

MCARTHUR & LASSITER, P.A.

JACK T. LASSITER

800 Tower Building

Little Rock, Arkansas 72201

Court-appointed Attorney for

Respondent

PRessot Byron S. Apams. INC. WasHinaTron. DC

Page

Pe 4 Sua aaah de cess dhboedeeacennd 1

SE ste egeveu ch ecetessscbedeeaeus 1

QUESTIONS PREGENTED .. wo. ccc ccc ccccccces 2

CONSTITUTIONAL PROVISIONS INVOLVED ...... 2

STATEMENT OF THE CASE .........ccccccceee 2

SE bo bbe b eee BAN deK ad ceedéibdesscees 3

THE ARKANSAS SUPREME COURT CORRECT-

LY HELD THAT RESPONDENT’S EXPECTA-

TION OF PRIVACY IN THE CONTENTS OF

HIS LUGGAGE IN THE TRUNK OF THE CAB

SHOULD HAVE REQUIRED THE PROCURE-

MENT OF A SEARCH WARRANT PRIOR TO

ES i c¥Rb6eessboecenwee‘ee ss 3

=! PPC VTT ITE TT Ter ee Tere 16

CITATIONS

CASES: Page

Cady v. Dombrowski, 413 U.S. 433, (1973) ....... 6

Cardwell v. Lewis, 417 U.S. 583, 591 (1974) ...... 10

Carroll v. United States, 267 U.S. 132 (1925) ..... 3

Chambers v. Maroney, 399 U.S. 42 (1970)........ 5

Chimil v. California, 395 U.S. 752 (1971).......-. 12

Coolidge v. New Hampshire, 403 U.S. 443, (1971) 3

Johnson v. United States, 333 U.S. 10, 13-14

GD on bees cee ceseeeceeseesesecdeans 14

Jones v. United States, 357 U.S. 493, 499........ 4

Katz v. United States, 389 U.S. 347, 357 ........ 10

MacDonald v. United States, 335 U.S. 451,456... 4

Mincey v. Arizona, 98S. Ct. 2408 .......020e eee 5

Schleis v. United States, 433 U.S. 905 (1977) ..... 7

South Dakota v. Opperman, 428 U.S. 364(1976) .. 6

United States v. Chadwick, 433 U.S. 1(1977)..... 3

United States v. Finnigan, 568 F.2d 637 (9th Cir.

PA ee me rrr rr Tr err Tt 8

United States v. Fontecha, 576 F.2d 601 (5th Cir.

oa. ou dd Vad haekeuisesabedes tees 9

United States v. Jeffers, 342 U.S. 98,51......... 4

United States v. Reynolds, 582 F.2nd 1175 (8th

i PT sch ee cane ceteveeveveknetess ees 8

United States v. Schleis, 582 F.2d 1166 (8th Cir.

DU. “i ¢edee dna eeunwcdaseatsencaeaens 7

United States v. Stevie, 582 F.2nd 1175 (8th Cir.

DT indsiuknw kids sou Chee Edede eveees 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1497

STATE OF ARKANSAS, Peti tioner,

v.

LONNIE JAMES SANDERS, Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

—_—_—_—

$$ __

BRIEF FOR RESPONDENT

1. OPINION BELOW

The opinion of the Supreme Court of Arkansas is

reported at 262 Ark. 595, 559, S.W.2d 704 (1977) and

is attached in the Appendix prepared by Petitioner.

Il. JURISDICTION

| The respondent concurs with the petitioner's

Jurisdictional statement.

2

11]. QUESTIONS PRESENTED

The Arkansas Supreme Court correctly held that

respondent's expectation of privacy in the contents of

his luggage in the trunk of the cab should have re-

quired the procurement of a search warrant prior to

the search.

IV. CONSTITUTIONAL PROVISION INVOLVED

The respondent concurs with the petitioner that the

Fourth Amendment to the Constitution of the United

States is the appropriate constitutional section at

issue herein.

V. STATEMENT OF THE CASE

The respondent concurs with the statement of the

case presented by the petitioner with the following ex-

ception. In the petitioner's Statement of the Case,

petitioner indicates that Sanders and Rambo were not

placed under arrest until the suitcase was searched.

Detective Isom’s testimony indicates the Mr. Rambo

and Mr. Sanders were arrested at the time the cab was

stopped. (T.28)

3

ARGUMENT

The Arkansas Supreme Court Correctly Held

That Respondent's Expectation Of Privacy In

The Contents Of His Luggage In The Trunk

Of The Cab Should Have Required The Pro-

curement Of A Search Warrant Prior To The

Search.

Should the car search exception to the warrant re-

quirement extend to the seized closed personal lug-

gage of an arrestee found in the trunk of a cab or

should the arrestee’s expectation of privacy in the

contents of his suitcase require the procurement of a

search warrant? The issue before the Court is a predic-

table and inevitable confrontation between the car

search exception to the warrant requirement announc-

ed in Carroll v. United States 267, U.S. 132 (1925) and

the holding in United States v. Chadwick, 433 U.S. 1

(1977) requiring the issuance of a search warrant

before police entry into a footlocker held in police

custody.

Initially it should be remembered that Carroll,

supra, announced an exception to the warrant require-

ment based on practicalities arising from the mobility

of the automobile and the fleeting opportunity to

search. Therefore, an immediate roadside search of the

vehicle of an arrestee is justified where probable cause

exists. However, Carroll, supra, was and remains an

exception to the warrant requirement.

In Coolidge v. New Hampshire, 403 U.S. 443 (1971)

a case in which the Court evaluated a warrantless pro-

4

bable cause search of an automobile, the Court noted

that ‘‘the word automobile is not a talisman in whose

presence the Fourth Amendment fades away and

disappears’’. In reviewing the warrant requirement in

Coolidge, supra, at 455-456 the Court stated:

“Thus the 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 subject only to a few

specifically established and well delineated excep-

tions.’ Katz v. United States, 389 U.S. 347, 357.

The exceptions are ‘jealously and carefully

drawn’, Jones v. United States 357 U.S. 493, 499,

and there must be ‘a showing by those who seek

exemption . . . that the exigencies of the situation

made that course imperative.’ MacDonald v.

United States 335 U.S. 451, 456. ‘The burden is

on those seeking the exemption to show the need

for it.’ United States v. Jeffers, 342 U.S. 98, 51. In

times of unrest, whether caused by crime or racial

conflict or fear of internal subversion, this basic

law and the values it represents may appear

unrealistic or extravagant to some. But the

values were those of the authors of our fundament

constitutional concepts. In times not altogether

unlike our own they won by legal constitutional

means in England and by revolution in this conti-

nent - a right of personal security against ar-

bitrary intrusion by official power. If times have

changed reducing every man’s scope to do as he

pleases in an urban and industrial world, the

changes have made these values served by the

Fourth Amendment more, not less important.”’

5

The Court’s recognition of the continuing vitality of

the majority's analysis in Coolidge, supra, appears in

the language of Mincey v. Arizona, 98 S. Ct. 2408 at

2414 (1978), a case in which the Court rejected a

“murder scene exception” to the warrant require

ment.

‘Moreover, the mere fact that law enforcement

may be made more efficient can never by itself

justify disregard of the Fourth Amendment. The

investigation of crime would always be simplified

if warrants were unnecessary. But the Fourth

Amendment reflects the view of those who wrote

the Bill of Rights that the privacy of a person’s

home and property may not be totally sacrificed

in the name of maximum simplicity in enforce

ment of the law. For this reason warrants are

geneally required to search a person’s house or his

person unless ‘the excigencies of the situation

make the needs of law enforcement so compelling

that the warrantless search is objective'v

reasonable under the Fourth Amendment.”

It must, however, be noted that the United States

Supreme Court has upheld warrantless automobile

searches based upon pragmatic reasons where the

chances of removal of the vehicle or destruction of

evidence were remote. In Chambers v. Maroney, 399

U.S. 42 (1970), the Court held that a police officer with

probable cause to search an automobile at the scene

where it is stopped may later do so at the station

house without first obtaining a warrant. There was a

justification for the delayed search in Chambers,

6

supra, in that the occupants in the car were arrested in

a dark parking lot in the middle of the night and a

careful search at that point was impractical and

perhaps unsafe for the officers. Chambers, supra, at 52

n. 6. Nothing in Chambers, supra, suggests that the

officers could search a suitcase clearly utilized as a

repository of personal effects without first procuring

a warrant.

In South Dakota v. Opperman, 428 U.S. 364 (1976)

the Court refused to suppress evidence seized during

the course of a standard warrantless inventory search

of the defendant’s automobile after it had been lawful-

ly impounded. That search which was characterized as

common police practice throughout the country was

justified on the grounds that the inventory (1) pro-

tects the owners property while in police custody,

(2) protects the police against claims or disputes over

stolen property and, (3) protects the police from poten-

tial danger. Opperman, supra, at 370. In Cady v. Dom-

browski, 413 U.S. 433, (1973) the Court approved a

warrantless search of the defendant’s automobile

taken to a garage although no probable cause existed —

to believe that the vehicle contained contraband or

evidence of a crime. The search was upheld since it

followed standard police procedure incident to the

caretaking function of the local police to protect com:

munity safety. In Cady, supra, the local police

reasonably presumed that a revolver would be found

in the vehicle in that they believed that the owner, a

7

Chicago police officer, was required to carry his

weapon at all times.

Although warrantless searches absent exigencies

were permitted in Opperman, supra, and in Cady,

supra, those cases do not suggest that the police in

conducting such searches are authorized to inspect

suitcases or luggage which could be removed and

stored without further intrusion. See, Opperman,

supra, dissenting opinion at 388 n. 6.

Since the decision in Chadwick, supra, several cases

have arisen in the United States Circuit Courts of Ap-

peal presenting similar issues to those raised herein.

In United States v. Schleis, 582 F.2nd. 1166 (8th

Cir. 1978) the Eighth Circuit reconsidered the war-

rantless search of a briefcase seized from the defen-

dant at time of arrest. The briefcase was searched

after the defendant had been placed in a cell. The case

has been remanded for further reconsideration in light

of Chadwick, supra. Schleis v. United States, 433 U.S.

905 (1977). The Eighth Circuit concluded that there

was no reason to believe that any evidence might be

destroyed or that the briefcase contained explosives

or other dangerous instrumentalities and, therefore,

the warrantless search of the briefcase violated the

Fourth Amendment. The Court found that by placing

his personal effects inside a combination locked brief-

case, Schleis clearly, in the language of Chadwick,

‘manifested an expectation that the contents would

remain free from police examination.’ Schieis, supra,

8

at 1170. The Court also noted that the seizure of the

briefcase at the time of the arrest was sufficient to

place the property within the officer's exclusive con-

trol, therefore, triggering the warrant requirement.

Schleis, supra, at 1172.

Then in United States v. Stevie and United States v.

Reynolds, 582 F.2nd 1175 (8th Cir. 1978) the same

Court applied the warrant requirement to luggage

seized in a probable cause search of an automobile and

found in the trunk. There, DEA officers went to the

St. Paul Airport and watched the defendants as they

rented a car, placed their bags in the trunk and drove

away. After pulling the defendants over, the officers

detected the odor of marijuana inside the auto. The

defendants were removed from the car and placed

under arrest. The officers then seized the suitcase

placed on the rear floor of the stationwagon. Since the

suitcase seized by the officers was clearly within their

exclusive control, the Court held that the defendants’

expectations of privacy to the contents of the luggage

required the procurement of a warrant.

A contra position was taken by the Ninth Circuit in

United States v. Finnigan, 568 F.2nd 637 (9th Cir.

1977) where the Carroll exception was held paramount

and justified the search of a suitcase found in an

automobile where probable cause existed to search the

car. The Ninth Circuit found that, ‘‘A close reading of

Chadwick shows that that case was concerned with

the creation of a whole new class of objects to be ex-

cepted for the general proscription against war-

9

rantless searches rather than with the scope of the

automobile search exception.”’ Finnigan, supra, at

640.

The Fifth Circuit has dispensed with the warrant re-

quirement in post-Chadwick auto luggage search

cases if the exigencies of the situation justify pro-

ceeding without a warrant. In United States v.

Fontecha, 576 F.2nd 601 (5th Cir. 1978), a border

agent stopped defendant’s car four miles from his

check point on a deserted road. Afte« detecting the

odor of marijuana he searched defendant's luggage.

The Ninth Circuit found that the transportation of

luggage in an automobile does not per se constitute

exigent circumstances justifying a warrantless intru-

sion. But the factors surrounding Fontecha’s arrest

and the probable cause search on a deserted road

justified the procedure on that occasion.

The events surrounding the search in the instant

case are as follows. David Isom, a detective for the

Little Rock Police Department received information

from a reliable informant that Lonnie Sanders would

be arriving at the Little Rock Airport with a green

suitcase full of marijuana. (T.26) Acting on that in-

formation Detective Isom proceeded to the airport

with Officers Mize and Tuck. (T.27) Mr. Sanders

deplaned and was observed immediately by Detective

Isom. (T.27) Sanders was then followed through the

terminal where he met Mr. Rambo. Sanders picked up

a green suitcase and gave it to Rambo. (T.28) Sanders

then left and entered a taxi cab. Rambo ~aited until

10

the crowd dispersed and then went to the taxi. Rambo

placed the suitcase in the trunk of the cab. (T.28) The

cab left the airport and Isom and Tuck radioed ahead

to a black and white which pulled the cab over. (T.49)

Isom and Tuck arrived, arrested Sanders and Rambo,

seized the green suitcase from the trunk of the cab,

opened the suitcase and discovered ten pounds of

marijuana. (T.28) Mr. Sanders, Mr. Rambo and the

suitcase were taken to the station house. The cab

driver and the cab were released.

The Fourth Amendment “protects people not

places” and safeguards their legitimate expectations

of privacy against unreasonable government intru-

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

Therefore, in entering the Fourth Amendment

analysis in the instant case one should focus primary

attention not on the objects involved, a cab and a suit-

case, but on the privacy interest of the passenger. “ In-

sofar as the Fourth Amendment protects and extends

to motor vehicles, it is the right to privacy that is the

touch stone of our inquiry.”” Cardwell v. Lewis, 417

U.S. 583, 591 (1974).

The Court has once announced that a lesser expecta-

tion of privacy attaches to the automobile than to a

citizen’s home. ‘‘It’s function is transportation and it

seldom serves as one’s residence or as the repository

of personal effects’ and “its occupants and its con-

tents are in plain view.’’ Cardwell, supra, at 590.

However, that language in Cardwell, supra, was un-

necessarily broad and not entirely accurate. Cardwell

1]

dealt with a warrantless probable cause seizure of

paint scrapings from the exterior of an automobile. It

is of course correct that the automobile exterior and

portions of the interior which are readily visible

through the glass and doors exhibit little if any expec-

tation of privacy. It is also correct that police stop and

examine vehicles on a daily basis to check the license

plates, inspection stickers, and equipment. See, Cady,

supra, at 441 and Opperman, supra, at 368. However,

it is not the automobile which is at issue herein, it is

the expectation of privacy to the contents of the suit-

case, a repository of personal effects often carried in

an automobile. That distinction was recognized in

Chadwick, supra, “Unlike an automobile whose

primary function is transportation, luggage is intend-

ed as a repository of personal effects. In sum, a per-

son's expectations of privacy in personal luggage are

substantially greater than in an automobile.” It can-

not logically follow that the expectation of privacy is

diminished by placing luggage in the trunk of a car. If

anything, a greater expectation of privacy is

demonstrated by taking the closed luggage and plac-

ing it in an enclosure locked for protection.

Given the existence of a reasonable expectation of

privacy in the contents of a suitcase, what justifica-

tion does the State present for the warrantless intru-

sion?

The burden rests upon the State to prove “. . . the

exigencies of the situation made that course im-

perative."" MacDonald, supra. The State vigorously

12

argues that the warrantless seizure of the cab was

justified by the exigencies of the moment. Petitioner

then reasons that it necessarily follows that the war-

rantless search of the suitcase was reasonable as the

“fruit” of the acceptable seizure of the automobile.

(Petitioner’s brief at 24). That conclusion is reached

without a demonstration that an immediate war-

rantless search of the suitcase was necessary. The

suitcase was removed from the trunk of the cab and

was clearly in the possession of the officers. Sanders

and Rambo were in custody and obviously under the

control of the three Little Rock Police Officers. There

is no contention that the suitcase was within the

‘‘wingspread”’ of the defendants such that they might

reach the suitcase to obtain a weapon or destroy

evidence. Therefore, the search incident to arrest ex-

ception to the warrant requirement that is reviewed in

Chimil v. California, 395 U.S 752 (1971) is not at issue.

There simply were no exigent circumstances requiring

an immediate search of the suitcase. Petitioner does

not and cannot contend otherwise. Further, there was

no reason to believe that the suitcase contained any

inherently dangerous instrumentality.

It should be noted before proceeding further that

respondent does not contend that automobile com-

partments such as locked trunks, glove boxes, and

consoles cannot be searched without a warrant. Ob-

viously these areas exhibit an expectation of privacy

but they are part of the automobile and incapable of

independent police seizure. If the car leaves, the glove

13

box leaves and the mobility rational of Carroll, supra,

may well justify warrantless inspection with probable

cause of the enclosures. The Court need not reach that

issue herein, the distinction between the glove box

and the suitcase is apparent.

The State also attempts to justify the warrantless

search in that the weekend was approaching and it

would have been difficult to find a magistrate. That

seems to be little or no excuse since the waibcase could

have been seized and held until the magistrate was

found. Further, Sanders and Rambo could have been

arrested and charged at that point. The same probable

cause for the search would have constituted

reasonable casue for their arrest. See

Crim. Pro. Rule 4.1. : Gogo

Amicus, Americans for Effective Law En-

forcements, Inc. extend the argument of the state and

make a rather paternalistic assertion that it is best for

the citizen if we allow luggage searches at the scene of

the arrest thereby avoiding a great deal of inconve

nience if no contraband or other evidence of a crime is

discovered. It is neither Amicus nor the Court’s place

te decide whether procurement of a warrant would

inconvenience” the passengers or driver of the

vehicles. It should be remembered that the citizen can

consent to an immediate search. The decision as to

whether the citizen will be ‘‘inconvenie ys

nced”’ sh

be left with the citizen. eae

14

Further, Americans for Effective Law En-

forcements, Inc., argues that officers have an absolute

need to conduct a contemporaneous search of luggage.

Amicus argues that a failure to extend the car search

exception to suitcases found in an automobile will

hamper law enforcement. Brief of Americans for Ef-

fective Law Enforcement, Inc., as Amicus Curaie at 8.

That argument has been often heard. As the Court

pointed out in Chadwick, supra, the warrant provides

for the ‘detached scrutiny of a neutral magistrate

which is a more reliable safeguard than the hurried

judgment of law enforcement officers engaged in the

often competitive enterprise of feretting out crime’.

Johnson v. United States, 333 U.S. 10, 13-14 (1948).

Further, as the Court reminded us in Mincey, supra,

fundamental constitutional rights will not be com-

promised for the sake of simplifying law enforcement.

It should be noted that the dissent in Chadwick,

supra, takes the position that the proper seizure of the

luggage may by itself render the subsequent war-

rantless search constitutionally permissible. Further,

the dissent there argues that warrants are usually

forthcoming in these situations and the formality of

procuring a warrant would not have “much practical

effect’’ in protecting Fourth Amendment values.

The seizure of the suitcase obviously interferes with

an individual's possessary property rights. But the

property rights are not the crux of the Fourth Amend-

ment. It is rather the individual's privacy rights. The

majority points out in Chadwick, supra, that the prin-

15

cipal privacy interest is not in the container itself but

its contents. The search of the contents of the

footlocker in Chadwick were there characterized as

‘“...a far greater intrusion into Fourth Amendment

values than the impoundment of the foot locker’.

It may well be that warrants are usually forthcom-

ing in these cases and the formality of warrant pro-

curement would not have much practical effect.

However, it has not been this attorney’s experience

that warrants would have been readily issued upon

the reasons announced by Officers in numerous car

search incidents. However, even if warrants would be

generally forthcoming in these cases, the argument of

the dissent in Chadwick is an argument of pragmatics

and does not directly deal with the Fourth Amend-

ment maxim that any warrantless search must be

justified as ‘‘imperative”’ or ‘‘compelling’’.

In summary, the car search exception to the war-

rant requirement should not be extended to suitcases

or other similar containers which by their nature in-

dicate to the police officers that they are a repository

of personal effects and that the owner does not expect

the contents to be probed without his permission or

without a warrant. Suitcases can be easily and readily

seized by law enforcement officers and secured at the

station house until a warrant is procured. The basis

for the Carroll, supra, exception to the warrant re

quirements is inapplicable to luggage. An automobile

is mobile and the chance for search fleeting, the suit-

case is powerless to transport itself and the opportuni-

16

ty to search lasts as long as the police desire to keep

the item in their possession. To extend Carroll, supra,

to justify the search of the suitcase in the instant case

would extend the exception past the rational which

gave it birth. The Court should continue to recognize

that the expectation of privacy is the key to the war-

rant requirement in Fourth Amendment analysis and

hold that consideration paramount unless overcome

by a compelling demonstration of exigencies by the

State. As was stated by the dissent in Chadwick,

supra, ‘‘Criminal law necessarily involves some line

drawing.” It does, and the line drawn for extension of

the Carroll doctrine should be here. The state has not

justified the warrantless search and the decision of

the Arkansas Supreme Court suppressing the

evidence found in the suitcase should be affirmed.

CONCLUSION

For the reasons stated above the decision of the

Arkansas Supreme Court at 262 Ark. 595, 559 S.W.2d

704 (1977) should be affirmed.

Respectfully submitted,

MCARTHUR & LASSITER, P.A.

JACK T. LASSITER

800 Tower Building

Little Rock, Arkansas 72201

Court-appointed Attorney for

Respondent