Respondents Brief — Robbins v. California

Supreme Court brief1981

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No. 80-146 “ , t U.S ;

Oitics Supreme Court.

Tir &

IN THE SUPREME COURT ight

sit asa APR é

ALCXANOEN b STEY

UNITED STATES | en Te

OCTOBER TERM, 1980

JEFFREY RICHARD ROBBINS,

Petitioner,

Ve

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

BRIEF FOR RESPONDENT

GEORGE DEUKMEJIAN,

Attorney General

ROBERT H. PHILIBOSIAN

Chief Assistant Attorney

General-Criminal Division

EDWARD P. O'BRIEN

Assistant Attorney General

CLIFFORD K. THOMPSON, JR.

Deputy Attorney General

RONALD E. NIVER

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-2653

Attorneys for Respondent

QUESTIONS PRESENTED

1. Did petitioner have an expec-

tation of privacy in the containers in

his car so intense that police were

constitutionally required to secure a

warrant before examining them?

2. Should the exclusionary rule be

invoked to suppress evidence seized in

reasonable reliance on state and federal

decisions antedating United States

v. Chadwick, 433 U.S. 1 (1977)?

Opinion

Table of Contents

Below ° 3S e e e ° e ° e ° s ° 1

Jurisdiction o oe eo es ° ° . o s s ° ° 2

Constitutional Provisions

SRVOLVOG a. ee. ee eee. oe ees 3

Statement of the Case. ....-+.-«e 3

Summary

Argument

I.

Il.

Conclusi

Of Argument. « 2« «© «© © © « «9

Petitioner's Expectation of

Privacy in the Containers

Searched Was Not So Intense

That a Search Warrant Was

ROEGULTOG). 6 « 0 & se © © 0 04

A. The Warrant Requirement 16

B. The Katz Expectation

Of Privacy Doctrine . . 32

C. Containers Deserving

The Protection Of The

Warrant Clause. .... 37

D. The Search of the

Containers. . ..«.. 58

Evidence Seized In Reason-

able Reliance Upon Federal

and State Cases Validating

The Search Should Not Be

Suppressed Because Of A

Subsequent Change in the

Law. ~ = © ° . o . e - - _ 63

on 7 7 . 2 » s * ° ° ° - Sd 74

7%

ii.

Table of Authorities

Cases

Abel v. United States,

362. 0.80217 C1960) cielk 6 0 686

Agnello v. United States,

269 0.8.20 Gages te 6 oe ee

Araj v. State,

592 S.W.2d 603 (Tex.Crim.Ap.1979)

Arkansas v. Sanders,

442 0.86 753 (21979) . « ew cs ce

Bradford v. State,

401 N.E.2d 77 (Ind.App.1980)...

Brown v. Illinois,

422 U.8.590. (1975). « «© we we eo 0

Cady v. Dombrowski,

CLe Dele Ban Abele) 6 ¢ @¢ ee e's

Camara v. Municipal Court,

387 U.8. 523 (1967) . « « « © 0 e

Cardwell v. Lewis,

417 U.S. 583 (1974) e ° ° ° ° ° °

Carroll v. United States, ‘

267 UuBs' 232 CESeet se 6 ee

Chambers v. Maroney,

399 Usd. 42 U197O}). 6 0 eo 0 6 0.

Chapman v. United States,

365.0.8. 610. (2961) 4 « «© 6 6 0

Chimel v. California,

395 UscB.. 782 (1969) 2 cic eo 8 es

iii

Table of Authorities

(Continued)

Cases Page

Clark v. State,

574 P.2d 1261 (Alaska 1978) .... 66

Colonnade Catering Corp. v.

United States

397 0.8.72 (1970) . .. ee seer al

Colorado v. Bannister,

U.S. , 101 S.Ct.42 (1980). .. 18

Commonwealth ve Berman,

396 A.2d 1237 (Pa.Super.1978) ... 66

Coolidge v. New Hampshire,

403 U.8,: 443 (1971) 2. ce ec ew eo eo oe Al

Cooper v. California,

386 U.S. 58 (1967). . «© « « © «© «© « *1Y

Cooper v. Commonwealth,

577 S.W.2d 34 (Ky.App.1979)

°

°

°

.

rs

Ww

Cupp v. Murphy,

Si2 UB.) 29k LAP 1 So) 6 Se et ee tw ew 8O

Daiger v. State,

595 S.W.2d 653 (1980) . 2. . « « « « 46

Dawson v. State,

40 Md.App.640,

395 A.2d 160 (1978) . «. « « « «© « « 46

Duncantell v. State,

563 S.W.2d 252 (Tex.Crim.App.1978). 43

Flynn v. State,

' 374 So.2d 1041 (Fla.App.1979) ... 47

*’*

iv

Table of Authorities

(Continued)

Go-Bart Importing Co. v.

United States,

282 U.S.344 (1931). . «© « 6

Gustafson v. Florida,

414 U.S. 260 (1973) . ...«-.

Harris v. United States,

390 U.S. 234 (1968) .... .

Hester v. United States,

265 U.S. 57 (1924). « we « @ «

Hinkel v. Anchorage,

618 P.2d 1069 (Alas.1980) ..

Johnson v. United States,

333 U.S. 10 (1948). .... -

Jones v. United States,

357 U.S. 493 (1958) . . « « «

Katz v. United States,

389 U.S. 347 (1967) . 2. «© « -«

Mancusi v. DeForte,

392 U.S. 364 (1968) o e © ° °

Marshall v. Barlow's, Inc.,

436 U.S. 307 (1978) ...

McDonald v. United States,

335 U.S. 451 (1948) . . 2. «

Michigan v. DeFillippo,

443 U.S.31 (1979) ° ° e » ° °

Page

Vv

Table of Authorities

(Continued)

Michigan v. Tucker,

417 U.S.433 (1974). . «. «© «© © «

Michigan v. Tyler,

436 U.S. 499 (1978) . . « « « «

Mincey v. Arizona,

437 U.S. 385 (1978) e e .° ° ° s

Moore v. State,

594 S.W.2d 245 (Ark.1980) ...

Payton v. New York,

445 U.S. 573 (1980) . . 2. « «

Pennsylvania v. Mimms,

434 U.S.106 (1977). . . « «© « «

People v. Barnett,

113 Cal.App.3d 563,

170 Cal.Rptr.255 (1980) ....

People v. Belton,

50 N.Y.2d 447, 407 N.E.2d 420,

429 N.Y.S.2d 574 (1980), cert.

granted, 49.U0.S.L.W.3509 (1981)

People v. Boyd,

86 I11.App.3d 73,

407 N.E.2d 982 (1980) . ...-.

People v. Dalton,

24 Cal.3d 850,

598 P.2d 467, (1979)

cert.den.445 U.S.946 (1980) ..

People v. DeSantis,

46 N.Y.2d 82,

385 N.E.2d 577,

412 N.Y¥.S.2d 838 (1978) ....

58

46

56

44

45

*%

*.>

vi

Table of Authorities

(Continued)

People v. Diaz,

101 Cal.App.3d 440,

161 Cal.Rptr.645 (1980) ...

People v. Dumas,

9 Cal.3d 871

512 P.2d 1208,

109 Cal.Rptr.304 (1973)...

People v. Harris,

101 Cal.App.3d 204,

164 Cal.Rptr.296 (1980) ...

People v, Maldonado,

76 App.Div.2d 691,

431 N.Y¥.S.2d 580 (1980) ...

People v. Marshall.

69 Cal.2d 5l,

442 P.2d 665,

69 Cal.Rptr.585 (1968)... .

People v. McClaugherty,

193 Colo. 360,

566 P.2d 361 (1977) . . 2. es

People v. McKinnon,

7 Cal.3d 899 (1972) ....-s

People v. Minjares,

24 Cal.3d 410,

P.2d 514,

153 Cal.Rptr. 224

cert.den.444 U.S. 887 (1979).

People v. Pace,

92 Cal.App.3d 199,

154 Cal.Rptr. 811 (1979)...

Page

43

29

46

43

57

23

65

40

44

vii

Table of Authorities

(Continued)

People v. Redmond,

73 I11.App.3d 160,

390 N.E.2d 1364 (1979)...

People v. Rinaldo,

80 i i MT 433,

399 N.E. 1027 (1980)...

People v. Silvey,

110 Cal.App.3d 67,

167 Cal.Rptr.566 (1980) ..

People v. Suennen,

114 Cal.App.3d 192,

170 Cal.Rptr.677 (1980) ..

People v. Vermouth,

20 Cal.App.3d 746,

98 Cal.Rptr.65 (1971) ...

Rakas v. Illinois,

439 U.S. 128 (1978) ....

Rawlings v. Kentucky,

U.S.

TOO S.ct. 2556 (1980)...

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) ...-.

Scisney v. State,

Ark. ,

605 S.W.2d 451 (1980)...

See v. Seattle,

387 U.S. 541 (1967) ....

Silverman v. United States,

365 U.S. 505 (1961) . ...

Page

46

45

44

43

65

21

35

16

40

21

34

7’.

vili

Table of Authorities

(Continued)

Smith v. Maryland,

442 U.S. 735 (1979) . 2. « « «

South Dakota v. Opperman,

428 U.S. 364 (1976) .....

State v. Blais,

416 A.2d 1253 (Me.1980) ...

State v. Cavegn,

294 N.W.2d 717 (Minn.1980). .

State v. DeLong,

43 Or.App.183,

602 P.2d 665 (1979) . « « « «

State v. Downes,

31 Or.App.419,

571 P.2d 914 (1977) . . 2...

State v. Elliott,

605 P.2d 930 (Haw.1980) ...

State v. Guzman,

362 So.2d 744 (La.1978) ...

State v. Heberly,

120 Ariz.54l,

587 P.2d 260 (1978) .... -»

State v. Johnson,

277 N.W.2d 346 (Minn.1979). .

State v. Kahlon,

172 N.J.Su r.33l,

411 A.2d 1178 (1980). ....

State v. Marcum,

24 Wash.App.44l,

601 P.2d 975 (1979) . .«. « « «

44

66

66

42

45

42

45

40

ix

Table of Authorities

(Continued)

State v. Metcalfe,

593 P.2d 638 (Alas.1979)...

State v. Sabater,

601 P.2d 11 (Kan.App.1979),

cert.den.446 U.S.518 (1980) .

State v. Schrier,

283 N.W.2d 338 (Ia. 1979) ..

State v. Thompson,

596 P.2d 174 (Kan.App.1979) .

State v. Walker,

93 N.M. 769,

605 P.2d 1168 (1980). ....

State v. Webb,

560 S.W. 2d 318,

615 P.2d 1004 (1980). ....

State v. White,

94 N.M.687,

615 P.2d 1004 (1980). ....

Stone v. Powell,

428 U.S.465 (1976)... .«.«.-s.

Stoner v. California,

376 U.S. 483 (1964) . 2. 2. « «

Sumlin v. State,

587 S.W.2d 571 (Ark.1979) ..

Terry v. Ohio,

392 U.S. 1 (1968) ° ° ° ° . °

45

46

40

46

40

46

44

66

17

46

28

x

Table of Authorities

(Continued)

Sumlin v. State,

587 S.W.2d 5°1 (Ark.1979) ..

Terry v. Ohio,

392 U.B. 1 (1968) . «26 e 8 «

Texas v. White,

Sea Webs, 01,/5aR te) 6 6 * oe

Trupiano v. United States,

334 U.S. 699 (1948) . «. « ce «

Ulesky v. State,

379 So.2d 121 (Fla.App.1979).

United States v. Anderson,

500 F.2d 1311 (5th Cir.1974).

United States v. Aviles,

S30 Boae G50 (i976) « « « © e

United States v. Bella,

605 F.2d 160 (5th Cir.1979) .

United States v. Biswell,

i ee Pe) oe ev |) Be

United States v. Blair,

493 F.Supp.398 (D.Md.1980). .

United States v. Bloomfield,

594 F.2d 1200 (8th Cir.1979).

United States v. Brown,

635 F.2d 1207 (6th Cir.1980).

Page

46

28

18

17

46

65

65

“4

21

43

40

41

xi

Table of Authorities

(Continued)

United States v. Calandra,

Ce ama See ALTER 6. 2 @ ee 0c 6

United States v. Calandrella,

605 F.2d 236 (6th Cir.),

cert.den.444 U.S.991 (1979) ...

United States v. Canada,

527 F.2d 1374 (9th Cir.1975)...

United States v. Chadwick,

Ore wach CARTE & re) ee 6 el ee

United States v. Dien,

609 F.2d 1038 (2d Cir.1979) ...

United States v. Edwards,

O15 Bee BOUL eae rel) «6:6 0 6 © 6

United States v. Evans,

BeL°F.oae peu tece Cif.1973) . « e

United States v. Farrar,

470 F.Supp. 128 (S.D.Miss. 1979).

United States v. Freie,

545 F.2d 1217 (9th Cir.1976),

cert.den.430 U.S.966 (1977) ...

United States v. Gaultney,

581 7.201137 (Sth Cir.i978)...

United States v. Giles,

536 F.2d 136 (6th Cir.1976) ...

United States v. Gooch,

603 F.2d 122 (10th Cir.1979)...

United States v. Goshorn, ‘

628 F.2d 697 (lst Cir.1980) ...

Page

’. >

xii

Table of Authorities

(Continued)

United States v. Honigman,

633 F.2d 1336 (9th Cir.1980). .

United States v. Isom,

588 F.2d 858 (2d Cir.1978). . .

United States v. Jeffers,

SES Cabs SG: TESLA cb 6 wees es

United States v. Jiminez,

626 F.2d 39 (7th Cir.1980)...

United States v. Johnson,

588 F.2d 147 (5th Cir.1979) ..

United States v. MacKay,

606 F.2d 264 (9th Cir.1979) ..

United States v. Mackey,

626 F.2d 684 (9th Cir.1980) ..

United States v. Mannino,

635. ?.20.1130: (26 Cis cided). .

United States v. Markland,

489 F.Supp.932 (D.Conn.1980). .

United States v. Meier,

602 F.2d 253 (10th Cir.1979). .

United States v. Miller,

608 F.2d 1089 (5th Cir.1979). .

United States v. Moreno,

569 F.2d 1049 (9th Cir.1978). .

United States v. Morquecho,

474 F.Supp.1134 (S.D.Tex.1979).

Page

41

45

17

42

40

40

42

47

44

40

44

45

47

xiii

Table of Authorities

(Continued)

Page

United States v. Neumann,

ae wom wee ACAELLOIG) 6 6 © «.¢ 6 42

United States v. Ocampo,

492 F.Supp.1211 (E.D.N.Y.1980). .. 45

United States v. Peltier,

ee Pee teres Ses « ee «6 (e 66

United States v. Presler,

610 F.2d 1206 (4th Cir.1979). ... 41

United States v. Rivera,

486 F.Supp.1025 (N.D.Tex.1980). .. 47

United States v. Robinson,

Cn man Bae SEO POP Sse 0 te 6 eo fe ae

United States v. Salvucci,

om

ae eiee. 98a) 429060) . . .... . 35

United States v. Sanders,

631 F.2d 1309 (8th Cir.1980). ... 43

United States v. Schleis,

582 F.2d 1166 (8th Cir.1978). ... 41

United States v. Soriano,

497 F.2d 147 (Sth Cir.1974) .... 65

United States v. Stevie,

582 F.2d 1175 (8th Cir.1978),

cert.den. 443 U.S.911 (1979). ... 40

United States v. Sutton,

636 F.2d 96 (5th Cir.1981)..... 41

United States v. Tramunti,

513 F.2d 1087 (2d Cir.1975) .... 65

**

7%

xiv

Table of Authorities

(Continued)

United States v.

United States District Court,

G07 Usch aRe EROTS) oike 86 ee

United States v. Vallieres,

443 F.Supp.186 (D.Conn.1977). .

United States v. Van Leeuwen,

397: BeBe: ZAR: CROTON oe eee.

United States v. Venizelos,

495 F.Supp.1277 (S.D.N.Y.1980).

United States v. White,

401: 0.8. 700s CASTE) 8% 6 ela oe

United States v. Williams,

622 F.2d 830 (5th Cir.1980) ..

Vale v. Louisiana,

399 Uewa 30 (1971). 2 * . = — o

Walter v. United States,

U.S.

100 S.ct.-2395 (1980) .....

Warden v. Hayden,

387 U.8. 294 (1967) . « «2 6 @

Webb v. State,

373 So.2d 400 (Fla.App.1979). .

Wyss v. State,

262 Ark.506,

558 S.W.2d 141 (1977) ~~... -

Page

16

40

27

46

35

68

17

27

18

41

43

xV

Constitutional Provisions

United States Constitution

Amendment Four ... .

Amendment Fourteen. ..

Statutes

28 U.S.C.

BOGClOe tans ss 6 2 0 e

Bection 1257(3) . « e e

BOGULOR ZLGlLe « c© 2 & 6

California Vehicle Code

BOGrno. aeees 0 « © ¢ 8

Sestson 64546, . « « ce e

Section 12851 ....« e

Other Authorities

Amsterdam, Perspectives on the

Fourth Amendment

58 Minn.L.Rev. 349 (1974)

A Reconsideration of the Katz

Expectation of Privacy Test

76 Mich.L.Rev.154 (1977)

From Private Place to Personal

Privilege: A Post-Katz Study

of Fourth Amendment Protection

43 N.Y.U.L.Rev. 968 (1968).

Judicial Integrity and Judicial

Review: An Argument for

Expanding the Scope of the

Exclusionary Rule,

20 U.C.L.A.L.Rev. 1129 (1973)

Page

N W DO

auc

30

13

35

64

*%

7%

~ xvi

Other Authorities

(Continued)

Warrantless Searches and

Seizures of Automobiles,

87 Harv.L.Rev. 835 (1974)...

. Lafave, Search and Seizure

section 2.1 at 240 (1978) ...

section 2.2 at 245 (1978) ...

2 Lafave, Search and Seizure

section 7.2 at 78 (1981 Supp.).

Page

19

31

25

50

No. 80-148

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

JEFFREY RICHARD ROBBINS,

Petitioner,

Ve

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

OPINION BELOW

The opinion of the Court of

Appeal of the State of California, First

Appellate District, Division Four, filed

on March 4, 1980, is appended to the

Petition for Writ of Certiorari and may

/

/

rs

|

be found at 103 Cal.App.3d 34, 162

Cal.Rptr. 780,2/

JURISDICTION

Petitioner would invoke this

Court's appellate jurisdiction under

Title 28, United States Code sections

1257 and 2101. Jurisdiction is

1. The court of appeal filed two

earlier opinions, both unpublished, in

this case. The first, filed on June 30,

1976, was vacated by that court's order

of July 22, 1977. Petitioner's appeal

was reinstated for further briefing and

Oral argument. Prior to its vacation,

petitioner had sought review of this

first opinion by petition for writ of

certiorari filed in the United States

Supreme Court on December 14, 1976 (No.

76-817). Following a response by the

State of California, this Court denied

the petition,

After reinstatement of the appeal,

the court of appeal filed a second opin-

ion on May 9, 1978, and amended it on

May 22, 1978. After denial of a hearing

by the California Supreme Court on July

5, 1978, petiticner sought review in

this Court by petition for writ of cer-

tiorari filed on October 3, 1978 (No.

78-567). On June 25, 1979, this Court

granted the writ, vacated the decision

of the court of appeal, and remanded

the cause for reconsideration in light

of Arkansas v. Sanders, 442 U.S. 753

(1979). 443 u.S. 903.

= |

conferred by Title 28, United States

Code, section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendments

Four and Fourteen, section l.

STATEMENT OF THE CASE

On January 23, 1975, the

District Attorney of Solano County

accused petitioner Jeffrey Richard

Robbins of possession, possession for

sale, and transportation of marijuana,

in violation of California Health and

Safety Code sections 11357, 11359, and

11360; and driving under the influence

of a drug, in violation of Vehicle Code

section 23105 (cT 8-9).2/ Petitioner

pleaded not guilty (CT 11), was tried by

2. "CT" refers to the Clerk's

Transcript on Appeal; "RTS" refers to

the Reporter's Transcript of the

suppression hearing; "RT" refers to the

Reporter's Transcript of trial

proceedings; "PHT" refers to the Tran-

script of the preliminary hearing; "JA"

refers to the Joint Appendix.

’%

a jury (CT 13), and on May l, 1975, was

convicted of possession, possession for

sale, and transportation of marijuana,

but was acquitted on the remaining

charge (CT 48-49).

Proceeding eastbound on Inter-

state Route 80 in Solano County at 1:45

a.m. on January 5, 1975, California

Highway Patrol Officers Ronald DePue and

Richard Stoltz noticed petitioner

Jeffrey Richard Robbins driving in the

same direction in a blue, 1966 Chevrolet

four-door station wagon along parallel

Nelson Road (RTS 4-5; PHT 6; JA 6,

55-56). As the officers observed peti-

tioner at a distance of about one tenth

of a mile, Robbins twice crossed the

centerline of the roadway (RTS 6; JA

58). Approaching a curve, petitioner's

station wagon drifted into the oncoming

lane the full width of the vehicle, its

right wheels reaching the center line

(RTS 6; JA 58). Petitioner managed to

return his vehicle to the right side of

the road but, while negotiating the

curve, drifted three feet across the

center line (RTS 6-7; JA 58-59). DePue

also noted that petitioner was driving

30 miles per hour in what DePue thought

was a 55 mile-per-hour zone (RTS 6; JA

57). Judging petitioner's driving to be

erratic, Officer DePue and Sergeant

Stoltz followed and stopped him "to

determine why it had left -- was

operating outside of a marked road lane"

(RTS 7; JA 60).

Petitioner immediately alighted,

meeting DePue midway between their

vehicles (RTS 8; PA 61). The officer

asked for petitioner's driver's license

and ownership registration (RTS 9;

JA 62) .2/ Petitioner, perspiring

~ 3. California Vehicle Code section

4454 requires owners to maintain the

(Footnote continued next page)

|

profusely, swallowing rapidly, his eyes

bloodshot and watery, experienced diffi-

culty in removing the license from his

wallet (PHT 5, 17; JA 9, 29), When

petitioner opened his car door to

retrieve his registration, DePue, stand-

ing three to four feet behind him,

smelled the familiar odor of burned

marijuana within the vehicle (PHT 6-7;

RTS 9-10; JA 10-11, 64-65). The officer

also noted smoke in the station wagon's

interior (RT 43).

.Footnote continued from previous page)

registration or a facsimile copy in

their vehicle. Vehicle Code section

2804 authorizes California Highway

Patrol officers, “upon reasonable belief

that any vehicle is being operated in

violation of any provisions of this

code" to "require the driver of the

vehicle to stop and submit to an inspec-

tion of the . . . registration card,"

Vehicle Code section 12951 obliges a

driver to carry his license while

driving and to present it upon demand of

a peace officer enforcing traffic regu-

lations.

Officer DePue then pat-searched peti-

tioner for weapons (RTS 10; JA 65),

finding only a vial of malodorous liquid

(RTS 11; JA 65-66). DePue next entered

the passenger compartment to recover a

pair of tweezers observed on the front

seat (RTS 12; JA 67). The officer pre-

viously had observed such devices used

to hold marijuana roaches (RT 43).

After petitioner vomited (RTS 12; JA

68), DePue reentered the station wagon

to find two pairs of tweezers on the

dashboard, one with a burned, hand-

rolled cigarette butt, and a cookie tin

on the rear floor (PHT 7; RTS 14-16; JA

12-13, 70-75). Inside the tin were two

packs of cigarette papers and a plastic

baggie containing marijuana (PHT 8; RTS

18; JA 13, 77).

While Officer bDePue searched

the passenger compartment, petitioner

remarked to Sergeant Stoltz, "What you

are looking for is in the back" (RTS 18,

25; JA 77, 89). Stoltz relayed this

statement to DePue, who then unlocked

the back of the station wagon, raised

the floorboard, and found a brown tote

bag, a briefcase, and two green plastic

bags which had been taped closed

(PHT 23-24; JA 39-40).

It was stipulated that the

green bags each contained 15.25 pounds

of marijuana (PHT 25; JA 42). It was

further stipulated that three plastic

bags in the tote bag contained, respec-

tively, 474.2 grams, 445.3 grams, and

475.3 grams of marijuana. A pint glass

jar also found in the tote bag contained

54.7 grams of marijuana. The cookie tin

contained 12.7 grams of marijuana seeds

and 3.8 grams of marijuana (PHT 25; JA

42-43). Inspector Grundy of the Solano

County Drug Abuse Bureau placed the

street value of the seized contraband at

approximately $8,000 (RT), a quantity

sufficient to supply an individual user

for 17 years (RT 189).

About ten minutes after the

contraband was discovered, petitioner

was advised of his Miranda rights (RTS

21; JA 82). He was not interrogated by

the arresting officers (RT 58). Prior

to the admonition petitioner told DePue

that he did not wish “to take the fall

for this” (RT 58), and asked Stoltz what

it would take "to get out of this?" The

sergeant replied that disposition would

follow booking. Petitioner said, “In my

left pocket, check it." Petitioner's

left pocket contained $521.00 (RT 122).

SUMMARY OF ARGUMENT

On January 5, 1975, two and

one-half years before United States v.

Chadwick, 433 U.S. 1 (1977) was decided

and four and one-half years before

Arkanss v. Sanders, 442 U.S. 753

10

(1979), was announced, a California

Highway Patrol officer seized and

searched petitioner's car and containers

found therein with probable cause to

believe that the vehicle and receptacles

contained marijuana. The decisions of

the California Supreme Court and Courts

of Recesk. and the Courts of Appeals for

several federal circuits had squarely

held that the search of containers found

in a car under those circumstances was

reasonable. The search in this case was

conducted in reasonable reliance upon

those decisions.

Petitioner argues that, notwith-

standing those decisions, the evidence

seized as a result of the search of his

belongings should have been excluded by

the trial court. Respondent submits

that where, as here, a search is con-

ducted in accordance with existing

11

constitutional norms, the exclusionary

rule should not be invoked to suppress

reliable evidence, free the guilty and

punish society. The purpose of the rule

is to deter police misconduct. When the

conduct of the officer was lawful at the

time, it would be irrational to suppress

evidence as a result of an unforeseeable

intervening change in the law. Chadwick

could not have been anticipated and

should not be applied to invalidate a

search which was taweul at the time it

was made.

Turning to the search, peti-

tioner argues that all warrantless

searches are per se unreasonable, sub-

ject only to a few carefully delineated

exceptions. This Court has held that

luggage taken from an automobile may not

be searched without a warrant in the

absence of exigent circumstances. To

permit a predictable application of the

12

Fourth Amendment, petitioner asserts

that “luggage” must include all con-

tainers which are intended to protect

their contents from observation bv the

outside world. Therefore, the con-

tainers -- cookie tin, tote bag, and

Plastic bags -- should not have been

searched without a warrant.

Respondent replies that not all

containers found in vehicles deserve the

protection of the warrant clause of the

Fourth Amendment... This Court's cases

explain that the reasonable expectations

of privacy attending the place to be

searched or the thing to be seized

determines whether a warrant -- or even

probable cause -- is required. Those

expectations are determined not by sub-

jective personal desires but by objec-

tive societal norms. The crucial issue

is whether the search would violate

society's sense of security, engendered

13

and shaped by the customs and values of

the past and present.

Respondent submits that the

Court's cases, most notably United States

v. Chadwick, 433 U.S.1 (1977); and

Arkansas v. Sanders, 442 U.S.753 (1979),

teach that the containers deserving the

protection of the warrant requirement

are those which reasonably indicate to

an objective observer that they were

intended to house papers or personal

effects, construing that phrase to mean

wearing apparel and other articles inti-

mately associated with the human body.

To determine whether the container is

intended to be a repository for papers

and effects, the searching police

officer must consider all of the cir-

cumstances, including the nature of the

container, the manner in which it is

secured, the place where it is found,

14

and the results of any lawful sensory

perception.

Applying these criteria to the

cookie tin and plastic bags, we assert

that there was probable cause to believe

that they contained marijuana and no

reason to believe that they contained

anything else. Accordingly, their

search by Officer DePue was valid.

ARGUMENT

I

PETITIONER'S EXPECTATION OF

PRIVACY IN THE CONTAINERS

SEARCHED WAS NOT SO INTENSE

THAT A SEARCH WARRANT WAS

REQUIRED.

Petitioner argues: (1) war-

rantless searches are unreasonable per

se, subject only to a few specifically

established and well-delineated excep-

tions; (2) absent consent or exigent

circumstances, luggage taken from a

vcehicle may not be searched without a

15

warrant; (3) for purposes of the warrant

requirement, “luggage” must be construed

to include all containers whose contents

their owner has attempted to shield from

the outside world; (4) in this case,

petitioner attempted to conceal the con-

tents of the cookie tin, tote bag, and

taped plastic bags; (5) as he did not

consent to their search and as Highway

Patrol Officers could have taken them to

headquarters while seeking a warrant,

the warrantless search was unlawful; (6)

therefore, the evidence seized should

have been suppressed. For the reasons

which follow, respondent submits that

the search conducted on Highway 80 in

the early morning of January 5, 1975,

was proper and that California courts

did not err in admitting the evidence

and, ultimately, affirming petitioner's

convictions.

**

16

A. THE WARRANT REQUIREMENT

Apparently begining with dictum

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

132, 156 (1925), this Court has

remained faithful to the proposition

that a warrant is necessary to conduct a

search unless some well-defined excep-

tion excused the procurement of prior

judicial authorization!’. Mincey v.

Arizona, 437 U.S. 385, 390 (1978);

Michigan v. Tyler, 436 U.S. 499, 504-

505, 509 (1978); Marshall v. Barlow's,

Inc., 436 U.S. 307, 312 (1978);

Schneckloth v. Bustamonte, 412 U.S. 218,

4, The importance and relevance of

this rule regarding the search of homes

was emphasized shortly after Carroll in

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

5): “"TIJt has always been

assumed that one's house cannot lawfully

be searched without a search warrant,

except as an incident to a lawful arrest

therein." The primacy of the home is

still recognized in this Court's recent

cases. See Payton v. New York, 445 U.S.

573, 585 (1980); United States v.

United States District Court, 407 U.S.

297, 323 (1972).

17

219 (1973); United States v. United

States District Court, 407 U.S. 297,

316-318 (1972); Coolidge v. New

Hampshire, 403 U.S. 443, 455-481 (1971)

(plurality opinion) .2/ We do not ask

this Court to retreat from this salutary

principle, which is part of the bedrock

of our free society. However, to deter-

mine the reasonableness of the search

which occurred in this case, it is

necessary to consider some of the excep-

tions to the warrant requirement and

5. Accord, Vale v. Louisiana, 399

U.S. 30, 34-35 (1971); Chimel v.

California, 395 U.S. 752, 762 (1969);

Mancusi v. DeForte, 392 U.S. 364, 370-

68); Katz v. United States, 389

U.S. 347, 357 (1967); Camara v.

Municipal Court, 387 U.S. 523, 528-529

(1967); Stoner v. California, 376 U.S.

483, 486 (1964); Chapman v. United

States, 365 U.S. 610, 613 (1961); Jones

Vv. United States, 357 U.S. 493, 497, 499

(1958); United States v. Jeffers, 342

U.S. 48, 51 (1951); McDonald v. United

States, 335 U.S. 451, 454 (1948);

Trupiano v. United States, 334 U.S. 699,

705 (1948); Johnson v. United States,

333 U.S. 10, 14-15 (1948).

-%

’%

18

their legal and theoretical justifica-

tions.

It has been axiomatic that the

warrant requirement is excused if exi-

gent circumstances require an immediate

search or seizure. E.g., Warden v.

Hayden, 387 U.S. 294, 298-300 (1967).

However, many of the exceptions to the

search warrant reguirement cannot be

explained upon that basis. The automo-

bile search doctrine is a good example.

When police stop a car on the street or

highway because they have probable cause

to believe that it contains contraband

or evidence of a crime, they may search

it without a warrant. Colorado v.

Bannister, U.S. , 101 S.Ct. 42

(1980); Arkansas v. Sanders, 442 U.S.

753, 760 (1979); Texas v. White, 423

U.S. 67, 68 (1975); Chambers v. Maroney,

399 U.S. 42, 47-49 (1970); Carroll v.

United States, 267 U.S. 132, 153 (1925).

19

The search may be conducted on

the spot (Carroll v. United States,

supra; Colorado v. Bannister, supra), or

at the police station garage. Texas v.

White, supra; Chambers v. Maroney,

supra; cf. Cady v. Dombrowski, 413 U.S.

433, 439-449 (1973); Cooper v.

California, 386 U.S. 58 (1967).

Although some cases have sug-

gested that the warrantless search is

necessitated by the exigent circumstan-

ces occasioned by the car's mobility

(Arkansas v. Sanders, supra, 442 U.S. at

761; Chambers v. Maroney, supra, 399

U.S. at 49-50), that rationale makes the

station house search cases inexplicable

despite attempts to reconcile them with

the warrantless search exception. Arkansas

v. Sanders, supra, 442 U.S. at 765 n.14;

Note, Warrantless Searches and Seizures

of Automobiles, 87 Harv.L.Rev.835, 843-

845 (1974). Noting that “warrantless

s%

|

20

searches of vehicles [have been upheld]

in cases in which the possibilities of

the vehicle's being removed or evidence

in it destroyed were remote, if

nonexistent" (Cady v. Dombrowski, supra,

413 U.S. at 441-442), this Court has

concluded that a warrantless search is

justified by the diminished expectation

of privacy which surrounds the automo-

bile: “One has a lesser expectation of

privacy in a motor vehicle because its

function is transportation and it seldom

serves as one's residence or as the

repository of personal effects."

Cardwell v. Lewis, 417 U.S. 583, 590

(1974) (plurality opinion); United

States v. Chadwick, supra, 443 U.S. at

12. "Automobiles operate on public

streets; they are serviced in public

Places; they stop frequently; they are

usually parked in public places; their

exteriors are highly visible; and they

21

are subject to extensive regulation and

inspection." Rakas v. Illinois, 439

U.S. 128, 154 n.2 (1978) (Powell, J.,

concurring). See also South Dakota v.

Opperman, 428 U.S. 364, 367-368 (1976).

A second example is the admin-

istrative search. Generally, searches

of businesses for safety violations and

homes for unsanitary conditions require

the issuance of search warrants.

Marshall v. Barlow's, Inc., 436 U.S. 307

(1978); Camara v. Municipal Court, 387

U.S. 523 (1967); See v. Seattle, 387

U.S. 541 (1967). However, an exception

from the svarch warrant requirement has

been recognized for “pervasively regu-

lated business[es]" (United States v.

Biswell, 406 U.S. 311, 316 (1972) [fire-

arms]), and for “closely regulated"

industries “long subject to close super-

vision and inspection." Colonnade

Catering Corp. v. United States, 397

22

U.S. 72, 74, 77 (1970) (liquor).

Although it was pointed out in Biswell

that it would be "inconvenient" to seek

& warrant (406 U.S. at 316), the same is

true of any unannounced or frequent

inspection procedure. The crux of the

exception to the warrant .equirement is

that the inspections “pose only limited

threats to the [gun] dealer's justifi-

able expectations of privacy. When a

dealer chooses to engage in this per-

vasively regulated business and to

accept a federal license, he does so

with the knowledge that his business

records, firearms, and ammunition will

be subject to effective inspection. ...

The dealer is not left to wonévr about

the purposes of the inspector or the

limits of his task." Id. at 316; see

also Marshall v. Barlow's Inc., supra,

436.U.S. at 313.

23

Third, the “open fields"

doctrine permits police to enter pro-

perty not falling within the curtilege

and to seize items of evidentiary value

without a warrant or evidence of exigent

circumstances. Hester v. United States,

265 U.S. 57 (1924). Hester, which has

survived the rejection by Katz v. United

States, 389 U.S. 347 (1967),°/of the doc-

trine of "constitutionally protected

areas" (id. at 351; see Rakas v.

Illinois, 439 U.S. supra, at 144 n.12.

[1979]), “is now viewed as merely an

application of the principle that Fourth

Amendment protections do not apply where

no reasonable expectation of privacy

exists." People v. McClaugherty,

6. The formulation of the so-called

Katz ruie actually is found in the con-

curring opinion of Mr. Justice Harlan:

"My understanding of the rule that has

emerged from prior decisions is that

there is a two-fold requirement, first

(Footnote continued next page)

7%

24

193 Colo.360, 566 P.2d 361, 363 (1977);

accord, United States v. Freie, 545 F.2d

1217, 1223 (9th Cir.1976), cert. den.

430 U.S. 966 (1977).

It is important to realize,

however, that a seizure in the Fourth

Amendment sense has occurred in the

foregoing situation. The inescapable

conclusion is that a search or seizure

is reasonable if the person who is

searched has no reasonable expectation

that he will be free from intrusions.—’

(Footnote continued from previous page)

that a person have exhibited an actual

(subjective) expectation of privacy and,

second that the expectation be one that

society is prepared to recognize as

"reasonable.'" Katz v. United States,

supra, 389 U.S. at 361. This Court has

adopted Justice Harlan's formulation in

subsequent decisions. See Smith v.

Maryland, 442 U.S. 735, 739-740 (1979).

7. Similarly, the "plain view"

exception to the warrant requirement

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

465-468 [1971]; Harris v. United States,

390 U.S. 234[1968]) justifies the

(Footnote continued next page)

25

Fourth, this Court has held that

& warrant is not required to seize or

search abandoned property. Abel v.

United States, 362 U.S. 217, 241 (1960).

Again, no showing of exigent circumstan-

ces is required. This Court's citation

in Abel (id. at 241) to Hester v. united

States, supra, indicates that the reason

for the dispensation of the warrant

requirement is that there is no property

interest -- to use the pre-Katz talisman

“= Or no reasonable expectation of pri-

vacy -- to use the post-Katz rubric --

in the property seized.

(footnote 7 continued)

legality of the observation but does not

justify the seizure. 1 Lafave, Search

and Seizure, section 2.2, at 245 (1978).

This Court has not required exigent cir-

cumstances, merely stating that it would

be a “needless inconvenience" to require

police to seek a warrant. Coolidge v.

New Hampshire, supra, at 468.

>

26

Fifth, even the right to search

an arrestee without a warrant as an

incident to his arrest (Gustafson v.

Florida, 414 U.S. 260 [1973]; United

States v. Robinson, 414 U.S. 218 [1973];

Chimel v. California, 395 U.S. 752

{[1969]), can be alternatively explained

by the reduction in privacy of his per-

son upon arrest. "I believe that an

individual lawfully subjected to a

custodial arrest retains no significant

Fourth Amendment interest in the privacy

of his person. ... The search inci-

dent to arrest is reasonable under the

Fourth Amendment because the privacy

interest protected by that constitu-

tional guarantee is legitimately abated

by the fact of arrest." United States

v. Robinson, supra, 414 U.S. at 237-238

(Powell, J., concurring). This ration-

ale explains United States v. Edwards,

415 U.S. 800 (1974), which upheld the

seizure and search of the defendant's

clothing several hours after his arrest,

See id. at 808-809. It is clear that no

exigent circumstances excused the fail-

ure to seek a warrant. Id. at 811

(Stewart, J., dissenting).

Finally, and most relevant to

the issue before this Court, although

packages in the mails (Walter v. United

States, __ U.S. __, 100 S.ct. 2395,

2400-2401 [1980]; United States v. Van

Leeuwen, 397 U.S. 249 [1970], luggage

(Arkansas vy. Sanders, supra), and other

repositories of personal effects (United

States v. Chadwick, 433 U.S. 1 [1977))

may not be searched without a warrant,

some containers will not "deserve the

full protection of the Fourth Amendment"

"because [for example] their contents

can be inferred from their outward

appearance,"

ss

28

Arkansas v. Sanders, Supra, at 765-766

n.13. The inference to be drawn from

the appearance of the package defeats

any reasonable expectation of privacy.

Ibid.

This review of representative

cases yields the conclusion that,

although a person may have a reasonable

expectation of privacy to be free from

unreasonable governmental intrusion,

"the specific content and incidents of

this right must be shaped by the context

in which it is asserted." Terry v.

Ohio, 392 U.S. 1, 9 (1968). Thus, the

Fourth Amendment affords a “hierarchy of

protection [which] arises not from the

application of differing constitutional

Standards to various locales, but rather

from an application of a single standard

of reasonableness to all places in

accordance with a fundamental under-

Standing that a particular intrusion

29

into one domain of human experience

seriously threatens personal security,

while the same intrusion into another

domain does not." People v. Dumas, 9

Cal.3d 871, 882-883, 512 P.2d 1208, 109

Cal.Rptr.304 (1973).

Petitioner argues that the Katz

formulation plays no part in the anal-

ysis of the issue in this case because

the test derived from Katz is intended

to determine whether a search occurred

at all. If it did, as in this case,

he would require the issuance of a

warrant, absent exigent circumstances

(Pet.Brief at 36-40). Decisions of this

Court, which have held that a reduced

expectation of privacy dispenses with

the warrant requirement, devastates

petitioner's argument. E.g., United

States v. Chadwick, supra, 433 U.S. at

12 (dictum); United States, v. Edwards,

Supra; Hester v. United States, Supra;

’%

-%

30

see also Cupp v. Murphy, 412 U.S. 291, 294-

296 (1973) ("limited intrusion" of scrap-

ing fingernails without warrant valid

although defendant not under arrest).

One commentator has argued that

recognition of gradations of privacy

"converts the fourth amendment into one

immense Rorschach blot," Creating a

"general sliding scale approach [which]

could only produce more slide than

scale." Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn.L.Rev.349,

395-396 (1974). However, this fear

ignores the teachings of the cases which

have been discussed. It overlooks the

Principles that each case must be judged

on its own facts (Go-Bart Importing Co.

v. United States, 282 U.S. 344, 357

(1931]), and that the ultimate question

is whether a search -- in light of all

the facts -- is reasonable. united

States v. Edwards, 415 U.S. 800, 807

31

(1974); Cooper v. California, 386 U.S.

58, 61-62 (1967). The heart of the

matter is that "the warrant process can

serve as a meaningful device for the

protection of Fourth Amendment rights

only if used selectively to control

those police investigative activities

which have the potential to be most

destructive of Fourth Amendment values."

l LaFave, Search and Seizure, § 2.1, at

240 (1978). Assessment of the extent of

the destruction requires a determination

of the extent of the reasonable expecta-

tion of privacy breached by the activity.

In view of this somewhat

extended discussion, we posit the

following: Not all containers receive

the same protection from the Fourth

Amendment. Some may be searched without

Probable cause or a warrant. Cf. Abel

v. United States, supra; Hester v.

United States, supra. Some require the

32

existence of probable cause and the

issuance of a warrant. United States v.

Chadwick, supra; United States v. Van_

Leeuwen, supra. In the middle of the

Fourth Amendment spectrum are those con-

tainers which may be searched upon pro-

bable cause alone. Arkansas v. Sanders,

Supra, n.13. We will now attempt to

identify the criteria which will deter-

mine to what extent the containers in

this case -- cookie tin, tote bags,

Plastic bags -- deserved protection of

the Fourth Amendment.

B. THE KATZ EXPECTATION OF PRIVACY

DOCTRINE.

Before turning to the specific

issue presented by this case, namely,

whether the police should have secured a

warrant to search the containers found

in petitioner's car we consider in

somewhat greater detail the Katz rule,

33

as formulated by Mr. Justice Harlan:

"[T]here is a two-fold requirement,

first that a person have exhibited an

actual (subjective) expectation of pri-

vacy and, second, that the expectation

be one that society is prepared to

recognize as 'reasonable'". 389 U.S. at

361.

The first requirement has been

criticized on the ground that a subjec-

tive expectation can be neutralized by,

for example, a governmental announcement

that everyone is under comprehensive

electronic surveillance. Amsterdam,

Perspectives, supra, at 384; Note,

A ReconsiGeration of the Katz Expecta-

tion of Privacy Test, 76 Mich.L.Rev.154,

158 (1977). Professor Amsterdam has

Suggested that the relevant question is

"what we should demand of government."

Fourth Amendment, supra, at 384. Another

34

commentator has suggested that what

should be demanded, as a minimum content

of the Fourth Amendment, may be deter-

mined under the traditional constitu-

tionally protected areas test. (F.g.,

Silverman v. United States, 365 U.S. 505

(1961).) Note, supra, 76 Mich.L.Rev.at

182, This approach has received

qualified acceptance from the Court.

Rakas v. Illinois, supra 439 U.S. at

143 n.12.,

The second inquiry is whether

the expectation of privacy, if present,

is reasonable. Courts do not make this

determination by "fall[ing] back on the

notion that those expectations of pri-‘

vacy which are legitimate depend primar-

ily on cases deciding exclusionary-rule

issues in criminal cases." Ibid,

Rather, “other social considerations"

determine which expectations are to be

constitutionally enforced. Note, From

35

Private Places to Personal Privacy: A

Post-Katz Study of Fourth Amendment

Protection, 43 N.Y¥.U.L.Rev. 968, 983

(1968). Justice Harlan believed that

justifiable expectations "are in large

part reflections of laws that translate

into rules the customs and values of the

past and present." United States v.

White, 401 U.S. 745, 786 (1971) (dissent-

ing opinion). This Court has reaffirmed

that property concepts are relevant,

although not dispositive, in "determining

the presence or absence of the privacy

interests protected by [the Fourth)

Amendment." Rakas v. Illinois, supra,

439 U.S, at 143 n.12; see also United

States v. Salvucci, ___ U.S. ie 100

S.Ct. 2547, 2553 (1980); Rawlings v.

Kentucky, _ U.S, _._.¢ 200 &.Ct. 2556,

2561 (1980).

As Professor Amsterdam sees it,

the “ultimate question" is whether the

36

police practice, if “permitted to go

unregulated by constitutional

restraints, [would diminish] the amount

of privacy and freedom remaining to

citizens . . . to a compass inconsistent

with the aims of a free society."

Perspectives, supra, at 403. Amsterdam's

position echoes that of Justice Harlan,

who would have “assess[ed] the nature of a

particular practice and the likely

extent of its impact on the individual's

sense of security balanced against the

utility of the conduct as a technique of

law enforcement." United States v.

White, supra, 401 U.S. at 786 (dissent-

ing opinion).

We conclude that the reasonable-

ness of the search in this case must be

determined by the "sense of security"

which a reasonable man would have in the

containers which were searched. That

_

37

sense is derived from the “customs and

values of the past and present" as they

relate to the intended purpose of the

container and the way in which it

actually was used. We now turn to an

analysis of the cases bearing upon these

isvuas to determine whether they provide

criteria to decide the legality of the

search of the containers in petitioner's

Car.

C. CONTAINERS DESERVING THE PROTECTION

OF THE WARRANT CLAUSE.

United States v. Chadwick,

Supra, invalidated the warrantless

search of a 200-pound double-locked

footlocker. In discussing the defen-

dant's expectations of privacy, this

Court observed that "luggage is intended

as a repository of personal effects."

The contents of luggage "are not open

to public view . . .; nor is luggage

’*

|

38

subject to regular inspections and official

scrutiny on a continuing basis." 433

U.S. at 13. In Arkansas v. Sanders,

Supra, pointing out that "the very pur-

pose of a suitcase is to serve as a

repository for personal items" (442 U.S.

at 764), this Court held "that the

warrant requirement of the Fourth Amend-

ment applies to personal luggage taken

from an automobile to the same degree it

applies to such luggage in other

locations." Id, at 766. But the Court

took pains to explain that not "all con-

tainers and packages found by police

during the course of a search will

deserve the full protection of the

Fourth Amendment. . .. [A] warrant

generally is required before personal

luggage can be searched and that the

extent to which the Fourth Amendment

applies to containers and other parcels

39

depends not at all upon whether they are

seized from an automobile." Id, at 764-

765 n. 13 (emphasis added).

This Court thus differentiated

"luggage" from “containers", "packages"

and "parcels". Since Chadwick and

Sanders were decided, state and lower

federal courts have had to categorize

containers for the purpose of deter-

mining when the warrant requirement

applied and when probable cause alone

was constitutionally sufficient. As

Sanders predicted, their efforts have

not produced a coherent body of deci-

sional law.

At one end of the spectrum,

courts have been generally consistent in

holding that a warrant is required to

search such containers normally associ-

ated with personal luggage as suitcases,

duffle bags, tote bags and knapsacks,

40

E.g., United States yv, MacKay, 606 F,2d

264 (9th Cir. 1979); United States v.

Meier, 602 F.2d 253 (10th Cir.1979);

United States v. Bloomfield, 594 F.24

1200 (8th Cir.1979); United States v.

Johnson, 588 F.2d 147 (5th Cir.1979);

United States v. Stevie, 582 F.2d 1175

(8th Cir.1978) cert.den. 443 U.S. 911

(1979); United States v. Vallieres, 443

F.Supp.186 (D.Conn.1977); Scisney v.

State, Ark. , 605 S.W.2d 451

(1980); People v. Minjares, 24 Cal.3a

410, 591, P.2d 514, 153 Cal.Rptr.224

cert.den., 444 U.S. 887 (1979); State v.

Walker, 93 N.M. 769, 605 P.2d 1168

(1980); State v. Marcum, 24

Wash.App.441, 601 P.2d 975 (1979) 87

8. One court held that the contents

of a knapsack were legally seized

because a bag of marijuana was on the

outside and the flaps of the sack could

easily be pushed aside to permit visual

inspection. State v. Schrier, 283

N.W.2d 338 (Ia. 1979)

41

Briefcases have also been

treated as repositories of personal

effects which are deserving of the pro-

tection of the warrant clause.

United States v. Presler, 610 F.2d 1206

(4th Cir.1979); United States v.

Calandrella, 605 F.2d 236 (6th

Cir.), cert.den. 444 U.S. 991 (1979);

United States v. Schleis, 582 F.2d 1166

(8th Cir.1978); Webb v, State, 373 So.2d

400 (Fla.App.1979); Araj v. State, 592

S.W.2d 603 (Tex.Crim.Ap.1979).

At the other end of the spec-

trum, courts have been virtually unani-

mous in holding that paper bags are not

entitled to the protection of the

warrant clause. United States v.

Sutton, 636 F.2d 96 (5th Cir.1981);

United States v. Brown, 635 F.2d 1207

(6th Cir.1980); United States Vv.

Honigman, 633 F.2d 1336 (9th Cir.1980);

42

United States v. Jiminez, 626 F.2d 39

(7th Cir.1980); United States v. Mackey,

626 F.2d 684 (9th Cir.1980); State v.

Guzman, 362 So.2d 744 (La.1978); State

Vv. Cavegn, 294 N.W.2d 717 (Minn.1980);

State v. Johnson, 277 N.W.2d 346

(Minn.1979), Mackey explained that the

paper bag "is among the least Private of

containers, It is easily torn, it can-

not be latched, and, to a greater extent

than most containers, its contents can

frequently be discerned merely by

holding or feeling the container." 626

F.2d at 687.

Between these antipodal situa-

tions lie a multitude of containers

which offer varying levels of privacy.

Courts have held that police are not

required to seek warrants when they

search: a department store box (United

States v. Neumann, 585 F.2d 355 [8th

43

Cir.1978]; People v. Maldonado, 76 App.

Div.2d 691, 431 N.¥.S.2d 580 [1980]; a

soft drink cup with an Opaque plastic

top (People v. Diaz, 101 Cal.App.3d 440,

161 Cal.Rptr. 645 [1980]; a taped

scrabble box (United States v. Gaultney,

581 F.2d 1137 [5th Cir.1978]); a pillow

case (People v. Suennen, 114 Cal. App.3d

192, 170 Cal.Rptr. 677 {[1980]); a tool

box (Wyss v. State, 262 Ark.506, 558

S.W.2d 141 [1977]); an electric razor

case (Cooper v. Commonwealth, 577 S.W.2d

34 [Ky.App.1979]); a match box

(Duncantell v. State, 563 S.W.2d 252

(Tex.Crim.App.1978]); an envelope

(United States v. Sanders, 631 F.2d 1309

(8th Cir.1980]); and 300 cardboard

boxes, some of them broken open, in the

hold of a ship (United States v. Blair,

493 F.Supp.398 [D.Md.1980}).

/

-*

f4

Containers which courts have

held are deserving of the warrant pro-

tection include: a guitar case (united

States v. Bella, 605 F.2d 160 [Sth Cir.

1979]); a shaving kit (Moore v. State,

594 S.W.2d 245 ([Ark.1980]); a plastic

portfolio (United States v. Miller, 608

F.2d 1089 [5th Cir.1979]); a camera case

(State v. DeLong, 43 Or.App.183, 602

P.2d 665 [1979]); taped or sealed cartons

(United States v. Dien, 609 F.2d 1038

[2d Cir.1979]); People v. Boyd, 86

I11.App.3d 73, 407 N.E.2d 982 [1980];

State v. White, 94 N.M.687, 615 P.2d

1004 [1980]); a lunch pail (People v.

Pace, 92 Cal.App.3d 199, 154

Cal.Rptr.811 [1979]); a candy tin

(People v. Silvey, 110 Cal.App.3d 67,

167 Cal.Rptr.566 [1980]); a plastic

cooler (United States v, Markland, 489

F.Supp.932 [D.Conn.1980]; contra, State

-%

45

v. Heberly, 120 Ariz.541, 587 P.2d 260

[1978] [ice chest]), and "boxes"

of various functions (United States Vv.

Isom, 588 F.2d 858 [2d Cir.1978]

[dictum]; United States v. Ocampo, 492

F.Supp.1211 [E.D.N.¥.1980]; State v.

Metcalfe, 593 P.2d 638 [Alas.1979];

People v. Dalton, 24 Cal.3d 850, 598 P.

2d 467, 157 Cal.Rptr.497 [1979], cert.

den., 445 U.S. 946 [1980]; People v.

Rinaldo, 80 I11.App.3d 433, 399 N.E.2a

1027 [1980] [contained microwave oven];

contra, State v, Kahlon, 172

N.J.Supr.331, 411 A.2d 1178 [1980] [box

Partially open])).

Courts have divided over the

admissibility of evidence taken from

Purses, The fruits of such searches

have been held admissible in United

States v. Moreno, 569 F.2d 1049 (9th

Cir.1978); United States v. Venizelos,

46

495 F.Supp.1277 (S.D.N.¥.1980); Hinkel

v. Anchorage, 618 P.2d 1069 (Alas.1980);

Sumlin v. State, 587 S.W.2d 571 (Ark.

1979); Daigger v. State, 595 S.w.2a 653

[1980]; People v. Barnett, 113 Cal.App.

3d 563, 170 Cal.Rptr 255 (1980);

People v. Harris, 105 Cal.App.3d 204,

164 Cal.Rptr.296 (1980); State v.

Sabater, 601 P.2d 1l (Kan.App.1979),

cert. den., 446 U.S. 518 [1980]; State

v. Thompson, 596 P.2d 174

(Kan.App.1979); Dawson v. State, 40

Md.App. 640, 395 A.2d 160 (1978); State

v. Webb, 560 S.W.2d 318 (Mo.App.1977).

Contrary results were reached in United

States v. Farrar, 470 F.Supp. 128

(S.D.Miss., 1979); People v. Redmond, 73

T1l.App.3d 160, 390 N.E.2d 1364 (1979);

Bradford v. State, 401 N.E.2d 77 (Ind,

App.1980); Ulesky v. State, 379 So.2d

121 (Fla.App.1979).,

47

Nor have opaque plastic bags

received consistent treatment. Their

searches have been sustained in United

States v. Mannino, 635 F.2d 110 (24

Cir.1980); United States v. Goshorn, 628

F.2d 697 (lst Cir.1980); and United

States v. Gooch, 603 F.2d 122 (10th Cir.

1979); United States vy. Morquecho, 474

F.Supp.1134 (S.D.Tex.1979); and Flynn v.

State, 374 So,2d 1041 (Fla.App.1979),

and condemned in United States v.

Rivera, 486 F.Supp.1025 (N.D.Tex.1980),

and State v. Blais, 416 A.2d 1253

(Me.1980),

This Court is asked to bring

Order out of the chaos which has

followed Chadwick and Sanders. It is

necessary to fashion a workable rule --

to be applied by all law enforcement

officers -- to determine which con-

tainers deserve the warrant protection

ss

-*

48

and which way be searched upon probable

cause alone. Petitioner insists that

the warrant clause covers all containers

which protect their contents from

unwanted eyes (Brief at 30). He argues

strenuously that all attempts to cate-

gorize containers with respect to the

warrant clause must fail because certain

Crucial concepts defy definition. If

the container to be Protected by the

warrant Clause must be "normally

intended to serve as a repository for

personal effects," petitioner asks

rhetorically: What is normal? Whose

intent? What is a repository? What is

& personal effect? (Brief at 30-36).

No, counsels petitioner, the "plain

truth" is that the warrant clause must

‘protect all containers which function to

keep out prying eyes (Brief at 34). A

number of cases explicitly or impliedly

49

have adopted this position. See, e.g.,

United States v. Markland, Supra, 489

F.Supp. 932; People v. Pace, supra, 92

Cal.App.3d 199, 154 Cal.Rptr.811; People

v. Boyd, supra, 86 I1l.App.3d 73, 407

N.E.2d 982; State v. Blais, supra, 416

A.2d 1253.

Although superficially

appealing, petitioner's position stands

upon a legally untenable foundation. He

asks this Court to vindicate subjective

expectations of privacy in containers

which keep out the prying eye. He

ignores the dispositive question whether

society is prepared to consider that

expectation to be "reasonable" or

"legitimate." Alternatively, he assumes

that all manifested expectations of pri-

vacy are legitimate per se. His posi-

tion runs contrary to an unbroken string

of precedents from Katz to Rakas,

50

teaching that all expectations of pri-

vacy, however well justified, cannot be

deemed to be legitimate without

reference to the “customs and values of

the past and present." If petitioner

prevails, it will mean that the warrant

Clause protects the paper bag, the match

box, the candy tin, the cigar box, the

soda cup (provided the top is opaque),

and any other container into which a

person cannot look. Such a result will

further tax the resources of law enfor-

cement and trivialize the warrant clause

of the Fourth Amendment. See 2 Lafave,

Search and Seizure, section 7.2 at 78

(1981 Supp.) We do not believe that the

framers of that Amendment, or of the

Fourteenth Amendment, intended to

require police to seek a warrant to

search a cookie tin. What is more to

the point, we do not believe that this

51

society's customs and values are

threatened by the warrantless search,

upon probable cause, of such a receptacle.

We submit that Katz, Chadwick,

Rakas, and Sanders indicate the following

rule: If a reasonable person, in light

of all of the circumstances, has cause

to believe that the container in

question is a repository of personal

effects, then a warrantless search is

prohibited. If, however, there is no

reason to believe that the container is

a receptacle for such articles, then

probable cause alone is sufficient to

justify the search. In evaluating all

of the circumstances, the searching

police officer may consider the intended

purpose of the container, its present

use, how it is secured or sealed, how it

is stored, its outside markings, its

weight and consistency, and any odor it

’%

>.

52

may emit. See United States v. Mannino,

supra, 635 F.2d 110; United States v.

Goshorn, supra, 628 F.2d 697;

United States v. Rivera, supra, 486

F.Supp.1025. “Personal effects" compri-

ses “such tangible property as is worn

or carried about the person, or tangible

property having some intimate relation

to the person. .. ." Annot., 30

A.L.R.3d 797, 811 (1970). "Papers,"

specifically mentioned in the Fourth

Amendment, should be included under the

rubric of "personal effects".

Under this test, in keeping

with the spirit of Chadwick and the

Fourth Amendment, luggage and brief-

cases normally could not be subjected

to a warrantless search. But other

containers, not “inevitably associated

with the expectation of privacy"

(Arkansas v. Sanders, supra, 442 U.S. at

53

762), could be searched upon probable

Cause alone, unless the searching

officer is, or should be, aware of

"specific and articulable facts" (Terry

v. Ohio, 392 U.S.1, 21 [1968]), that

it is being used to transport personal

effects. Thus, if a visual and tactile

examination of a paper bag reveals that

it is taped shut, and its contents have

the weight and consistency of clothing,

the policeman should realize that it was

intended to serve as a suitcase and

treat it as such. If, although sealed,

the bag reveals that its contents have

the weight and consistency of marijuana,

and the odor of marijuana emanates from

the bag, there is no reason to believe

that the paper bag is a repository for

personal effects and may be searched

because there is probable cause to

believe that it contains contraband.

54

We believe that the foregoing

rule strikes the proper balance between

the public need for the detection of

crime and the private need for security

in one's personal belongings. Surely

there is a greater need for privacy in a

suitcase than in a tool box. The

customs and values of this society dic-

tate that our senses of security in

those containers must differ. An item

of wearing apparel is simply not the

same as a crescent wrench. We recognize

that not all can afford suitcases and

briefcases to transport personal belong-

ings, but most can take steps to insure

their privacy in whatever container they

choose. Thus, if the steps they take,

as well as the surrounding circumstan-

ces, indicate that the container houses

personal effects, then a warrant must

issue before it is searched. This Court

55

recognized that there “will be diffi-

culties in determining which parcels

taken from an automobile require a

warrant for their search and which do

not." Arkansas v. Sanders, supra, 442

U.S. at 765 n.13. Those difficulties

can be largely overcome by requiring a

police officer to seek a warrant before

searching a container which he knows, or

reasonably should know, houses personal

/

ee Me ey i ee oe

->%

’>

56

effects.2/ Both petitioner and amicus

curiae take issue with footnote 13 of

Sanders. Petitioner argues that it is

factually inapplicable to this case, for

the footnote suggests that the con-

tainers which may be searched without a

9. This rule, however, should not

apply to containers, even those holding

personal effects, which are within the

immediate control of an arrestee at the

time of his apprehension. See United

States v. Chadwick, supra, 433 U.S.at

14-15; Chimel v. California, supra, 395

U.S. at 763. Thus, wallets, purses,

handbags, and other such articles in the

possession of the arrestee should be

subject to a warrantless search. See

United States v. Venizelos, 495 F.Supp.

1277, 1261-1282 (S.D.N.¥. 1980). The

conceptual basis for the search is that

the arrest and seizure of a person abates

any privacy interest in his personal

effects in his immediate possession at

the time of his arrest. See United

States v. Edwards, supra, 415 U.S.800;

United States v. Robinson, supra, 414

U.S. at 237-238 (Powell, J., ee

concurring); People v. DeSantis,

N.Y.2d 82, 87, 3B5 N.E.20 577, 579, 412

N.Y.S.2d 838, 840 (1978), overruled in

People v. Belton, 50 N.Y.2d 447, 407

N.E.20 420, 429 N.Y.S.2d 574 (1980)

cert. granted, 49 U.S.L.W. 3509 (1981).

57

warrant are those which identify their

contents (e.g., a gun case).

Petitioner's containers were not

"self-identifying*+’ (Brief at 52).

Amicus goes even further, insisting that

it is inconsistent with established

Fourth Amendment doctrine: “The outward

appearance of a container can provide no

more than probable cause; it cannot

exoubé the failure to obtain a warrant"

(Amicus at 3). The answer to both argu-

ments is identical: If the outward

appearance of a container indicates that

it is not a repository of personal

10. It is interesting to note that

petitioner is willing to concede a plain

sight exception, but not a "plain smell

exception" to the warrant clause, a

"neat but indefensible sergregation of

the human senses ... ." People v.

Marshall, 69 Cal.2d 51, 62, P,2d

665, 69 Cal.Rptr. 585 (1968) (Mosk, J.,

dissenting). In terms of expectations

of privacy, we fail to perceive any

valid distinction between the two sen-

sory perceptions.

>.

58

effects, then there is no reasonable

expectation of privacy so elevated that

a warrant is necessary to search it.

D. THE SEARCH OF THE CONTAINERS

We now turn to the question whether the

search of petitioner's containers+2/

violated the Fourth Amendment.

Petitioner does not dispute that the

stop of his car was justifiable. Cf.

Pennsylvania v. Mimms, 434 U.S. 106

(1977). Nor does he contend that the

strong odor of marijuana emanating from

ll. In the California Court of

Appeal, we conceded that the search of

the cookie tin and the tote bag was

invalid. 101 Cal.App.3d 15 39, 182

Cal.Rptr. at 982. We believed that the

concession was necessary in view of this

State's decisional law as it existed at

that time. E.g., People v. Minjares,

supra, 24 Cal.3d 410, 591 P.2d. » LOS

Cal.Rptr.224; People v. Dalton, supra,

24 Cal.3d 850, P.2a 467, 157

Cal.Rptr.497; People v. Pace, supra, 92

Cal.App.3d 199, uy. Cal.Rptr.811. We no

longer believe that the concession is

necessary and do not make it in this

Court.

59

his station wagon was insufficient prob-

able cause to search the vehicle and its

contents. See United States v. Rivera,

supra, 486 F.Supp.at 1033 (dictum); cf.

Johnson v. United States, supra, 333

U.S.at 13. Probable cause was substan-

tially augmented by petitioner's volun-

tary statement: “What you are looking

for is in the back." He contends, quite

simply, that 1:45 a.m. the officers

should have left the highways

unpatrolled while they secured a warrant

before searching the cookie tin, tote

bag, and plastic bags.

We first consider.the cookie

tin. The officers had probable cause to

believe that it contained marijuana, but

had no reason to think that it was used

as a repository for personal effects.

Nothing about the tin suggested that

petitioner used it to store a razor kit,

60

toiletries, jewelry, or the like. In

the absence of any such evidence that

petitioner used the cookie tin to store

anything other than marijuana (or

cookies), it cannot be said that peti-

tioner manifested an expectation of pri-

vacy which society must legitmate.

We next consider the green

Plastic bags. They are not “inevitably”

repositories of personal effects, but it

is true that petitioner exhibited an

intent to secret their contents from

the outside world by taping them. How-

ever, the officer's sensory inspection,

permitted by Chadwick, would negate

totally any inference that they con-

tained personal effects. Each bag

weighed 15 pounds, and held a form which

had the shape, weight, and consistency

of a marijuana brick. Had Officer DePue

smelled the bags before opening them,

61

he undoubtedly would have noticed the

pungent smell emitted by the marijuana

bricks. We conclude that nothing about

the circumstances would have indicated

to a reasonable observer that the pack-

ages contained personal effects. This

conclusion would not be altered even if

the smell of marijuana did not emanate

from the bags. For all the officers

could see, the bags contained "mere

cargo" and were not entitled to the pro-

tection of the warrant clause. See

United States v. Gooch, supra, 603 F.2d

122.

In addition, it is doubtful

that petitioner could claim a subjective

expectation of privacy, for he told the

officer that "it" was “in the back.” We

do not claim, at this late date, that

petitioner consented to the search of

/

7.

62

his bags .22/ See Schneckloth v.

Bustamonte, supra, 412 U.S. 218. We do

submit that his utterance negated any

expectation that the officers would seek

a warrant before searching the bags.

Therefore, society did not grant, nor

did petitioner possess, in the plastic

bags an expectation of privacy which

required the issuance of a search

warrant .22/

We therefore submit that the

containers, having the same level of

privacy as the car, could be searched

along with the car on the basis that

there was probable cause to believe that

they contained marijuana. See United

States v. Mannino, supra, 635 F.2d at.

12. The issve was never litigated

because, prior to the unforeseeable

result in Chadwick, it was lawful to

search containers in cars.

13. We do not make a similar conten-

tion about the tote bag.

63

115; cf. Arkansas v. Sanders, supra, 442

U.S. at 766-768 (Burger, C.J.,

concurring).

II

EVIDENCE SEIZED IN REASONABLE

RELIANCE UPON FEDERAL AND STATE

CASES VALIDATING THE SEARCH

SHOULD NOT BE SUPPRESSED BECAUSE

OF A SUBSEQUENT CHANGE IN THE LAW.

We will assume, without con-

ceding that search in this case was

invalid under Chadwick. But that is

only the beginning, not the end, of the

inquiry, because the illegality of a

search does not necessarily require

suppression of the evidence seized.

Before applying the exclusionary rule, a

remedial device not expressly mentioned

in the Fourth Amendment, this Court --

Or any court -- must balance its costs

against its benefits. See United States

v. Calandra, 414 U.S. 338, 348-51

; dees

64

(1974); Kaplan, The Limits of the

Exclusionary Rule, 26 Stan.L.Rev.1027,

1032-35 (1974). Typically, the com-

peting interests are the value to

society of deterring future police

misconduct and the cost of freeing

without punishment a defendant whose

guilt is proven by the supressed evi-

dence. Note, Judicial Integrity and

Judicial Review: An Argument for

Expanding the Scope of the Exclusionary

Rule, 20 U.C.L.A.L.Rev. 1129, 1149

(1973). When the cost is greater than

the benefit, the evidence is not

excluded. United States v. Calandra,

supra. It is therefore necessary to

assess the deterrent effect of the

exclusion of the evidence in this case.

"Before we penalize police error, there-

fore, we must consider whether the sanc-

tion serves a valid and useful purpose."

65

Michigan v. Tucker, 417 U.S. 433, 446

(1974).

The search occurred in this

case in January of 1975, two and one-

half years before Chadwick and four and

one-half years before Sanders. At that

time, cases of this State (People v.

McKinnon, 7 Cal.3d 899 [1972]; People v.

Vermouth, 20 Cal.App.3d 746, 98

Cal.Rptr.65 [1971]), and of federal

appellate courts (United States v.

Giles, 536 F.2d 136 [6th Cir.1976];

United States v. Canada, 527

F.2d 1374 [9th Cir.1975]; United States

v. Tramunti, 513 F.2d 1087 [2d Cir.1975];

United States v. Anderson, 500 F.2d 1311

{5th Cir.1974]; United States v.

Soriano, 497 F.2d 147 [5th Cir.1974] [en

banc], reaffirmed sub.nom United States

v. Aviles, 535 F.2d 658 [1976]; United

States v. Evans, 481 F.2d 990 [9th

66

Cir.1973]), upheld the warrantless

search of containers for evidence of

crime if police had probable cause .24/

It bears repeating that the

essential purpose of the exclusionary

rule is to deter police misconduct,

Michigan v. DeFillippo, 443 U.S. 31, 38

n.3 (1979); Stone v. Powell, 428 U.S.

465, 484 (1976); United States v.

Peltier, 422 U.S. 531, 542 (1975);

Michigan v. Tucker, 417 U.S 433, 446

(1974); United States v. Calandra, 414

U.S. 338, 347 (1974). In Peltier, the

Court refused to exclude evidence dis-

covered by searches which arguably

complied with existing law. The Court

declared: "If the purpose of the exclu-

14. Accord, Clark v. State, 574

P.2d 1261 (Alaska, 1978); State v.

Elliott, 605 P.2d 930 (Haw. 1980); State

v. Downes, 31 Or.App. 419, 571 P.2d 914

(1977); Commonwealth v. Berman, 396 A.2d

1237 (Pa. Super. 1978).

67

sionary rule is to deter unlawful police

conduct then evidence obtained from a

search should be suppressed only if it

can be said that the law enforcement

officer had knowledge, or may properly

be charged with knowledge, that the

search was unconstitutional under the

Fourth Amendment." Id. at 542.

Peltier reiterated the reason-

able, good faith standard for exclusion

set down a year earlier in Michigan v.

Tucker, supra, 417 U.S. at 447:

"The deterrent purpose of the

exclusionary rule necessarily

assumes that the police have engaged

in willful, or at the very least

negligent, conduct which has

deprived the defendant of some right.

By refusing to admit evidence gained

as a result of such conduct, the

courts hope to instill in those

68

particular investigating officers, or

in their future counterparts, a

greater degree of care toward the

rights of an accused. Where the

official action was pursued in

complete good faith, however, the

deterrence rationale loses much of

its force, *22/

In this case, it is clear that

Officer DePue reasonably and in good

faith relied upon the then-prevailing

rule that containers in a car as well as

15. The modification of the Exclu-

sionary Rule to conform to the good

faith standard has been espoused by

Chief Justice Burger (Stone v. Powell,

supra, 428 U.S.at 498 [conc.opn.]),

Justice Powell (Rakas v. Illinois,

supra, 439 U.S. at 156 n.5 [conc.opn.];

Brown v. Illinois, 422 U.S. 590, 609-610

[1975] [conc.opn.]), Justice White

(Stone v. Powell, supra, 428 U.S. at 538

[dis.opn.]), and Justice Rehnquist

(United States v. Peltier, supra;

Michigan v. Tucker, supra). See United

States v. Williams, F.2d 830 (5th

Cir. 1980).

69

the vehicle itself may be searched for

probable cause. “[UJnless we are to

hold that parties may not reasonably

rely upon any legal pronouncement eman-

ating from sources other than this

Court, we cannot regard as blameworthy

those parties who conform their conduct

to the prevailing statutory or constitu-

tional norm." United States v. Peltier,

supra, 422 U.S. at 542.

In this connection, we note

that Chadwick has been held to be pros-

pective, applying only to searches con-

ducted after the day it was decidea.+°/

United States v. Calandrella, 605 F.2d

236 (6th Cir.1979); United States v.

16. Although the search in Arkansas

v. Sanders occurred prior to the deci-

sion in Chadwick, the State of Arkansas

did not argue that Chadwick should be

prospectively applied. Thus, until now,

this Court has never been asked to

decide the temporal application of

Chadwick.

70

Cornejo, 598 F.2d 554 (9th Cir.1979);

United States v. Stewart, 595 F.2d 500

(9th Cir.1979); United States v. Choate,

576 F.2d 165, 182 n.20 (9th Cir.1978),

United States v. Berry, 571 F.2d (7th

Cir. 1978); United States v. Reda, 563

F.2d 510(2d Cir.1977); United States v.

Montgomery, 558 F.2d 311 (5th Cir.1977);

State v. Conti, 573 S.W. 2d 95 (Mo.Ct.

App.1978); Commonwealth v. Berman,

396 A.2d 1237 (Pa.Super.1978); Kemner v.

State, 589 S.W.2d 403 (Tex.Crim.App.

1979); contra, United States v. Stevie,

supra, 582 F.2d 1175; United States v.

Schleis, supra, 582 F.2d 1166; People v.

Minjares, supra, 24 Cal.3d 410, 591 P.2d

514, 153 Cal.Rptr.224. The vast major-

ity of the courts considering the ques-

tion have agreed that, prior to Chadwick,

officers who searched containers in cars

were reasonably relying upon the

71

“prevailing constitutional norm, *+2/

This Court will not invoke the

exclusionary rule to suppress relevant

evidence, free the guilty and punish

society unless a compelling social pur-

pose is to be served. See, e.g.,

United States v. Calandra, supra. In

this case, because Officer DePue could

not anticipate the formulation of the

Chadwick-Sanders rule at the time he

conducted the search in the early morn-

ing hours of January 5, 1975, the

suppression of the evidence would be a

17. In our opposition to petitioner's

first petition for writ of certiorari

(No. 78-567), we argued that the rule of

Chadwick should apply prospectively. We

did not make this argument in the state

court after remand because it had been

rejected in People v. Minjares, supra.

It was, therefore, not abandoned, an

may now be made in this Court.

This resolution of this issue is

crucial to respondent, for there exists

a conflict between this State and the

Ninth Circuit.

72

meaningless sanction, even if this Court

concludes that Chadwick today would

compel suppression. See United States

v. Calandrella, supra, 605 F.2d at

247-252 (fruits of search violating

Chadwick held admissible because

18/

Chadwick prospective).

18. We relegate to a footnote our

response to petitioner's curious argu-

ment that the court of appeal somehow

violated this Court's mandate when it

reinstated the judgment of affirmance on

new grounds not encompassed within its

prior opinion. In 1978, the lower court

upheld the search of the containers

under the then-established exception to

the warrant requirement permitting the

probable-cause search of cars and their

containers. After this Court's decision

in Arkansas v. Sanders, supra, this

Court granted certiorari and remanded

this case to the court of appeal for

reconsideration in light of Arkansas v.

Sanders.

Having been told by this Court

that there no longer was a “container

exception" to the warrant requirement,

the court of appeal was obliged to

decide whether, under Sanders, the

search nevertheless could be sustained

(Footnote continued on next page)

~“

Ww

jy RR, Nn Nem Oly, er Sl, Me Re

(Footnote 18 continued)

under other, narrower grounds delineated

in that opinion. In footnote 13, this

Court explained that not all containers

deserved the protection of the warrant

requirement and that the nature of the

package was relevant in determining

expectations of privacy. The lower

court decided that the packaging exposed

the nature of its contents. This ground

was not stated in the court's first

opinion because it was unnecessary and

because, prior to footnote 13, it really

did not exist.

In any event, because the

search of the container was reasonable

and the evidence was properly admitted,

petitioner's argument is moot.

74

CONCLUSION

For the fioregoing reasons, we

submit that the judgment of the

California Court of Appeals should be

affirmed.

DATED:

GEORGE DEUKMEJIAN,

Attorney General of the

State of California

ROBERT H. PHILIBOSIAN,

Chief Assistant Attorney

General-Criminal Division

EDWARD P. O'BRIEN,

Assistant Attorney General

CLIFFORD K. THOMPSON, JR.

Deputy Attorney General

RONALD E. NIVER

Deputy Attorney General

Attorneys for Respondent

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.

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