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
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