Petitioners Reply Brief — Robbins v. California

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IN THE SUPREME CO SUPREME COURT, U.S.

OF THE

UNITED STATES

OCTOBER TERM, 1980

JEFFREY RICHARD ROBBINS,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

We ee

| ON WRIT OF CERTIORARI

' to the Court of Appeal, State of California,

First Appellate District

PETITIONER'S REPLY BRIEF

Sar aS ER IIE IE NEE IE TE EET,

JOSEPH G. BAXTER MARSHALL W. KRAUSE

Attorney at Law KRAUSE, TIMAN, BASKIN,

Box 37, Main Street SHELL & GRANT

Duncans Mills, CA 95430 Wood Island, Sulte 207

Tel.: (707) 865-1311 60 E. Sir Francis Drake Blvd.

Lerkspur, CA 94939

Tel.: (415) 461-4100

Attorneys for :

Petitioner

eee rrr eee eee -

SUBJECT INDEX

FEUGCeET WEStere 3 oe ae 6 ee OY 1

1 |

This case does not involve a retro-

activity problem because the law

3 petitioner relies upon was the law

at the date of the illegal search 6

bit

The suggested new exceptions to the

Warrant Clause are neither lawful

Se Oe eee Cee a) ee a) we ee we ee 13

A. Reply to the Attorney General 13

B. Reply to the Solicitor General 21

lV

SO Be a ae a ee 28

TABLE OF AUTHORITIES CITED

Cases Pages

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

iy ee ae 6, 8 2, Ws 8t. 88, ee

Bowen v. United States, 422 U.S. 916 (1975) . 10

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

Carroll v. United States, 267 U.S. 132 .. 7, 9

Chambers v. Maroney, 399 U.S. 42 (1970)... 10

Coolidge v. New Wampshire, 403 U.S. 443 (1971) 10

Ex Parte Jackson, 96 U.S. 727 (1978) 4, 7, 14, 15

Harris v. United States, 331 U.S. 145 (1947) 24

Jones v. United States, 357 U.S. 493 (1958) . 18

Katz v. United States, 389 U.S. 347 (1967) 8, 24

Panama Refining Co. v. Ryan, 392 U.S. 388

CURE 64s 01 w Ven erie ta Orb ce ermie. 28

People v. Minjares, 24 C.3d 410 (1979)... 11

People v. Pace, 92 Cal.App.3d 199 (1979) .. 25

Rakas v. Illinois, 349 U.S. 128 (1978)... 24

Robbins v. California, U.S. (1979). 1

South Dakota v. Operman, 428 U.S. 364 (1976) 10

Stovall v. Denno, 388 U.S. 293 ....+-e-. 12

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

Die Se ele ee Dae ae ela mime 6. 76: Bi Wy 2

TABLE OF AUTHORITIES CITED

Cases Pages

United States v. Goshorn, 628 F.2d 697

(Ist Cir. gf ROR Git Gea aa ea 7 ae

United States v. Ross, F.2d.

TAU MBER Veg eo a. pe ee 28, 29

United States v. United States District

wourt, 97 U.S. 257 (isa)... se 18

Constitutiors

United States Constitution:

Fourth Amendment ... . 2, Fi Oe BS 88

No. 80-148

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

JEFFREY RICHARD ROBBINS,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI

to the Court of Appeal, State of California,

First Appellate District

PETITIONER'S REPLY BRIEF

|

FACTUAL MATTERS

At page 6 of the Solicitor General's

brief the United States takes the position

that "nothing in petitioner's conduct sig-

naled that he viewed these parcels as

matter deserving of protection on a par

with luggage."' To the contrary, petition-

-l-

er's packages were securely wrapped and

tape-secured parcels, which were placed

in a closed luggage compartment along with

other luggage. It would be hard to find a

more incorrect statement than that of the

Solicitor General.'

The Solicitor General (at p. 11 of the

brief) cites United States v. Goshorn, 628

F.2d 697 (1st Cir. 1980) as a holding that

paper bags and plastic wrapped bags are

not protected by the Warrant Clause of the

Fourth Amendment, In fact, that case held

that the question depended upon the facts

developed in the trial court with regard

it is urged by the Solicitor General that peti-

tioner's alleged statement to the police, ''What you

are looking for is in the back,'' precludes a claim

that he had subjective privacy expectations in the

contents of the luggage compartment. Respondent,

however, has already conceded that petitioner had

subjective expectations of privacy in the contents

of the securely wrapped packages. (Opposition to

Petition for Writ of Certiorari, at 10.) The cir-

cumstances under which this involuntary statement

was made are described at pages 5 and 6 of Petition-

er's Brief and the statement has never been urged

or relied on as a valid consent.

-2<

to the owner's treatment of such parcels

and remanded for a new hearing to the

District Court. On that new hearing, the

District Court found that the plastic

wrapped paper bags in that case were en-

titled to the protection of the warrant

clause. See United States v. Goshorn,

__—s«s-« F.. Supp. ___» Crim. No. 79-215-N

(March 6, 1981, USDC, Mass., Nelson, oF rer

The Solicitor General makes a serious

misstatement of fact in footnote 8, pp.

14-15 of his brief. He states that the

officer "could feel'' the contents of the

package possessed by petitioner. What

this package felt like is unknown on this

record as no one asked the arresting offi-

cer whether he felt the packages before

opening them and there is absolutely no

testimony that he did feel them. The

Solicitor General's conclusion that "par-

cels of this sort are generally unlikely

to have very private contents" (brief,

-3-

footnote 8) is unsupported by the record.

Petitioner's packages could just as well

have been shoeboxes containing private

papers, parcels wrapped for mailing which

had not yet received a mailing label or

any other private matters. Certainly there

is no requirement in Ex Parte Jackson that

a parcel be wrapped to make it apparent

that is is destined for dispatch by mail

as is argued by the Solicitor General,

brief, footnote 9. In fact, Jackson holds

that all parcels, wherever they may be

found, are protected by the warrant clause

and not just those dispatched by mail.

The Solicitor General does concede that

sealing a package with tape could manifest

the owner's special expectation of privacy

in that package. Brief, p. 19. However,

he then speculates that the tape in our

case was used simply to form a container

and prevent spillage. Once again, there.

is utterly no evidence of this in the re-

-h-

cord. So far as the record is concerned

the packages were securely wrapped and

taped,

The Attorney General speculates that

the arresting officer "undoubtedly" would

have noticed the Pungent smell of marijuana

from these packages. Brief, p. 61. There

is no testimony that the Packages had any

smell whatsoever,

Since both the Attorney General and

the Solicitor Genera] refer to the probable

cause which justifies the search in this

case, petitioner should Say that he does

not concede probable cause for either the

highway stop or the search of the rear of

his vehicle. However, petitioner did not

raise these issues in the Petition fer

Certiorari,

11

THIS CASE DOES NOT INVOLVE A RETROACTIVITY

PROBLEM BECAUSE THE LAW PETITIONER RELIES

UPON WAS THE LAW AT THE DATE OF THE ILLEGAL

SEARCH

Both the respondent and Solicitor

General argue that petitioner is seeking

to retroactively apply new law to his case

to show that the search was unconstitution-

al under United States v. Chadwick, 433

U.S. 1 (1977) and Arkansas v. Sanders,

442 U.S. 753 (1979). This is incorrect.

The law petitioner is invoking was in ef-

fect at the time his securely wrapped

packages were opened and searched without

a warrant.

it is apparent from a reading of

Chadwick that this Court applied the exist-

ing warrant requirement to defeat the three

arguments the government made in that case,

namely that the warrant requirement should

only apply to searches in the home, that

the locked footlocker should be treated in

the same way as an automobile under the

ie

principles of Carroll v. United States,

267 U.S. 132, and that the footlocker

search was incident to the arrest. It was

the government which tried to create new

law in Chadwick, not the defendant. In

rejecting the government's argument this

Court stated:

Moreover, in this area we do

not write on a clean slate.

[433 U.S. at 9.]

The slate had been occupied by many pre-

vious cases holding that absent specific

narrow exceptions the Fourth Amendment re-

quires that the judgment of the magistrate

intervene between the police officer and

the citizen before a search is accomplished.

These cases extend at least as far back as

Ex Parte Jackson (1878) 96 U.S. 727; 733.

Of course, police are required to know and

act in a manner consistent with the "core

doctrine" of constitutional law.

Our point is reinforced when the lower

court opinions in Chadwick are examined,

-7-

In the District Court (United States v.

Chadwick, 393 F.Supp. 763) Judge Tauro jin

suppressing the seized evidence relied

upon the rule of Katz v. United States,

389 U.S. 347 (1967), that warrantless

searches are per se unreasonable and re-

jected the government arguments that the

warrant requirement should not be applied.

in the First Circuit (United States v.

Chadwick, 532 F.2d 773) the government

pressed the same arguments which it did in

this Court and they were rejected with the

court holding that the warrant requirement

had been violated. Therefore, to argue

that the Chadwick case in this Court es~

tablished new law is to fly in the face

of the history of that case as well as the

history of the Fourth Amendment's warrant

clause.

We would also like to point out several

other factors which bear upon this argument.

First, this Court in Sanders, supra, ap~

-8-

plied the Chadwick rule to the search in

that case which took place before the

Chadwick opinion was filed. It may be

true that the State of Arkansas did not

urge retroactivity in its briefs or argu-

ment before this Court, but it fs also

true that this Court applied the Chadwick

rule to the search in Sanders without

hesitation because the warrant requirement

was not new law. What was new was the

argument of the State of Arkansas that

merely because a closed container was

found within an automobile that the war-

rant requirement was not applicable. The

rejection of that argument by this Court

does not, of course, mean that the rule

of law is created by this rejection. tIn-

deed, Justice Powell for the Court found

"no justification for the extension of

[Carroll] and its progeny to the warrant-

less search of one's personal luggage

merely because it was located In an auto-

-9-

mobile lawfully stopped by the police."

(Sanders, supra, at 765, emphasis added.)

Such has long been the established rule

of this Court. See Chambers v. Maroney,

399 U.S. 42, 50 (1970, per Justice White);

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

479-481 (1971, per Justice Stewart); South

Dakota v. Operman, 428 U.S. 364, 382 (1976,

concurring opinion of Justice Powell);

Cardwell v. Lewis, 417 U.S. 583, 591, 592,

n. 8 (1974, per Justice Blackmun).

Second, in this very case this Court

granted petitioner's previous petition for

certiorari (Robbins v. California, No. 78-

567) and vacated the judgment with direc~

tions that the case be remanded to the

Court of Appeal for further consideration

in the light of Arkansas v. Sanders.

While it is true that Bowen v. United

States, 422 U.S. 916 (1975) involved a

similar procedural remand and a later hold-

ing that an intervening United States

-10-

Supreme Court decision was not retroactive,

we think it unlikely that in our case this

Court wished a retroactivity ruling in the

light of the fact that Chadwick had just

been applied retroactively in the very

case for which a remand was made, Arkansas

v. Sanders.

Thirdly, California is free to make

its own decision on retroactivity of a

Fourth Amendment interpretation regardless

of the rule for federal courts. The court

below did not even discuss retroactivity

nor was it argued by the Attorney General.

The court below proceeded to apply Arkansas

v. Sanders. The California Supreme Court

has also applied Arkansas v. Sanders and

Chadwick v. United States retroactively.

People v. Minjares, 24 C.3d 410, 421, n. 6,

holding Chadwick did not accounce a new

rule of law. This is an area where states

should be free to make their own decisions

regarding retroactivity, so long as there

-11-

*%

is no conflict with a specific ruling of

this Court that a particular Fourth Amend-

ment interpretation is retroactive.

Lastly, both the respondent and the

Solicitor General argue for a new consti-~

tutional rule which would be that there is

no reasonable expectation of privacy in

what they choose to term insubstantially

wrapped packages and therefore the warrant

requirement should not apply to such pack-

ages. If the issue of insubstantially

wrapped packages is indeed a new constitu-

tional issue (which we challenge) then the

application of the law thus created is

necessarily retroactive to the search in-

volved in the case deciding that new issue.

Stovall v. Denno, 388 U.S. 293.

THE SUGGESTED NEW EXCEPTIONS TO THE WARRANT

CLAUSE ARE NEITHER LAWFUL NOR PRACTICABLE

Neither the Attorney General of Cali-

fornia nor the Solicitor General of the

United States makes any attempt to defend

the court below in deciding this case under

footnote 13 of Sanders. We now examine the

tests they suggest for adoption as consti-

tutional principles.

A. Reply To The Attorney Genera]

Respondent essentially argues that

"petitioner's expectation of privacy in

the containers searched was not so intense

that a search warrant was required,"

(Brief for Respondent, p. 14, emphasis ad-

ded.) In order to find the point on the

gradient scale of intensity where a warrant

is required, respondent creates the follow-

ing novel test:

e%

7.

if a reasonable person, in

light of all of the circum-

stances, has cause to believe

that the container in ques-

tion is a repository of

personal effects, then a

warrantless search is prohi-

bited. lf, however, there

is no reason to believe that

the container is a receptacle

for such articles, then

probable cause alone is suf-

ficient 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 con-

sistency, and any odor it may

emit. [Citations omitted. ]

"Personal effects'' comprises

"such tangible property as is

worn or carried about the

person, or tangible property

having some intimate relation

to the person."

(Brief for Respondent, pages

51-52.)

No court has ever articulated such a

rule. The rule, indeed, is flatly contrary

to Ex Parte Jackson, 96 U.S. 727, which

protects ''sealed packages ... in the

mail .. . as if they were retained by the

parties'' and packages "closed against in-

-14-

spection wherever they may be." Id. at

733 (emphasis added). Jackson extends the

Warrant Clause to such packages irrespec-

tive of whether the package puts the world

on notice that it contains clothing, "tan-

gible property having some inttmate rela-

tion to the person," or papers. For it is

a rare package that travels in the hands

of a public carrier that permits the ob-

server to do any more than guess what is

inside. And it is exactly because of

their nondescript quality that such parcels

are private. As this Court indicated in

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

the "contents of a package can be inferred

from their outward appearance" the expect-

ation of privacy is lessened. id. at 764-

765, n. 13. A package which discloses

that its contents are jewelry, or money,

Or papers is less private than the pack~

ages in our case.

The proposed rule would appear to

-15-

protect only luggage, briefcases and other

types of containers which put the world on

notice that certain types of personal ef-

fects might be inside. But reasonable

expectation of privacy extends far beyond

such containers. Luggage is commonly used

by someone who is traveling away from his

home. But if someone is traveling across

town, or not traveling at all, luggage

would not commonly be used to store or

carry personal effects. In such case, the

person would be more likely to use a box,

a bag, a tin, a briefcase, or some other

similar container. Of these, respondent

would apparently protect only the brief-

case. But not everyone has a briefcase.

Lawyers and certain types of middle level

corporate executives have briefcases, but

not the blue collar worker, the secretary,

the housewife, the high school student,

the waitress, or the auto mechanic. And

even if a briefcase is possessed, it may

o16-

already be filled, or it may be too small

to carry the private objects in question.

Respondent offers no reason for limit-

ing Warrant Clause protection to only

"such tangible property as is worn or car-

ried about the person, or fang!b te proper-

ty having some intimate relation to the

person." (Brief for Respondent at 52.)

Such a limitation would appear to place

books, movies, photographs, tape record-

ings, gold, silver, and other property not

worn on the body outside the protection of

the Warrant Clause. Such property, how-

ever, is ordinarily much more private than

the shirts, pants, hosiery, and razor kits

which respondent wishes to protect.

Respondent's proposed rule would create

an exception to the Warrant Clause large

enough to exclude most of what the Warrant

Clause is designed to protect. Yet the

rule is that exceptions to the Warrant Re-

quirement are "few" and "jealously guarded"

and are limited to those cases where the

-17-

societal costs of obtaining a warrant,

such as danger to law officers, or the

risks of destruction of evidence, out~-

weigh the reasons for prior recourse to

a neutral magistrate. Jones v. United

States, 357 U.S. 493, 499 (1958); United

States v. United States District Court,

4O7 U.S. 297, 318 (1972). The exception

proposed by respondent obviously does not

satisfy these standards.

The proposed exception to the Warrant

Clause is likewise so vague that it invites

case by case evasion instead of analysis.

It asks the policeman in the heat of fer-

reting out crime to feel a package, smell

it, and presumably shake it to guess what

is inside. After this examination, respond-

ent would have the police decide whether a

reasonable man would have cause to believe

personal effects were inside, taking into

account "the intended purpose of the con-

tainer, Its present use, how it is secured

-18-

or sealed, how it is stored, its outside

markings, its weight and consistency, and

any odor it may emit.'"' (Brief for Respond-

ent at 51-52.) But how does a container

get an "intended purpose?"' Whose inten-

tion? How does the police officer know

its "present use" until the container is

opened up? How does the method of secur-

ing or sealing indicate whether or not

"property worn or carried about the person’!

is inside the parcel? How does "the meth-

od of storage'' indicate whether "property

* + « WOrn or carried about the person" is

inside the parcel? How does the weight of a

package "closed against inspection" indi-

cate what is inside? How does the consist-

ency of the container indicate what Is

inside? Just how relevant are outside

markings? It is common knowledge that

containers are re-used and that a shoebox

does not always contain shoes.

The vague rules of this sensory guess-

-19-

ing game are shown by respondent's applica-~

tion of them in this case. For all anyone

could tell, the nondescript packages in

this case could have contained any number

of personal effects. The packages presented

the "visual impression of .. . package(s)

that had been tightly wrapped for shipment

by mail." (Dissenting Opinion, at A-10

and A-11, app., Petition For A Writ of

Certiorari.) The storage of the packages

in a secure luggage compartment along with

luggage items notified the officers that

the packages were the functional equivalent

of luqgage. The secure wrappings likewise

put the officers on notice that personal

effects might be inside. Yet respondent

evaluates these facts and takes them to

suggest that the container was not a re-

pository of personal effects."

4 Likewise, respondent urges that the appearance

of a cookie tin does not cause one’ to believe that

personal effects may be inside. But it Is common

knowledge that people sometimes employ cookie tins

to store small personal items such as jewelry,

letters and postcards. In any event, the cookie tin

is not before this Court as its protection under

Sanders was conceded in the court below.

-20-

Thus the rule urged by the Attcrney

General draws no clear line and creates an

exception to the Warrant Clause large enough

to exclude most of what the Warrant Clause

is designed to protect.

3. Reply To The Solicitor General

The Solicitor General proposes a dif-

ferent exception to the Warrant Clause for

"searches of various kinds of bags and in-

secure parcels" (Brief for the United States

as Amicus Curiae at 14). Nevertheless, the

Solicitor General qualifies his exception

by noting that even the search of such

containers may require a warrant when "by

reason of particular features, the appear-

ance of a parcel, its surroundings, the

conduct of the person claiming Fourth Amend-

ment protection or other circumstances, an

individual may so manifest his expectation

of privacy in a container ordinarily em-

-21-

ployed for nonprivate use" that a warrant

may be required. (Brief for the United

States as Amicus Curiae, p. 15, n. 9.)

Whatever the merit of these contentions,

they have no bearing in this case since it

is undisputed that the parcels in this

case were "securely wrapped." In their

March 4, 1980 opinion, the California Court

of Appeal found that the packages were

"tape secured" (Petition For A Writ of

Certiorari, No. 80-148, p. A-5.). Like-

wise, in their May 9, 1978 opinion, the

Court of Appeal found that the packages

were ''securely wrapped.'' (Petition For A

Writ of Certiorari, No. 78-567, p. iii.)

The photograph in evidence shows a "nackage

that had been tightly wrapped for shipment

by mail, or to protect its contents, or

for both purposes." (Dissenting Opinion,

Petition For A Writ of Certiorari, No. 80-

148, p. A-11.) But inasmuch as the Soli-

citor General raises the issue of a Warrant

-22-

Clause exception for searches of "various

kinds of bags and insecure parcels," peti-

tioner offers the following comments.

The det tetbor General's sole contention

is that "insubstantial" containers ordinar-

ily involve less expectations of privacy

than substantial containers and that there-

fore a warrant should not be required.

Their assumption that "insubstantial con-

tainers" involve lower expectations of

Privacy, however, is totally unproven.

Consider the ordinary envelope. What less

substantial container could there be? it

is not a "personal Sanctuary." It has

little "structural integrity" and can be

easily torn. Yet a person who carries a

sealed envelope expects the privacy of its

contents to remain inviolate. If he puts

the envelope down on his desk, or on a

car seat, he does not lose his right of

privacy.

Even if the envelope is unsealed, the

-23-

expectations of privacy are substantial.

As Justice Jackson questioned, "If it were

wrong to open a sealed envelope

would it have been right if the mucilage

failed to stick?'' Harris v. United States,

331 U.S. 145, 197, 91 L.Ed. 1399, 67 S.Ct.

1098 (1947) (dissenting opinion).

The expectationof privacy which soci-

ety should be prepared to recognize as

3

"'reasonable'' or "legitimate should not

3 Both the respondent and the Solicitor General

distort the 'legitimate'' expectation of privacy

Standard. This Court has given the following ex-

planation of this standard: ,

[A] "legitimate expectation.of

privacy by definition means more

than a subjective expectation of

not being discovered. A burglar

plying his trade in a summer cab-

in during the off season may have

a thoroughly justified subjective

expectation of privacy, but it is

not one that the law recognizes

as “legitimate'’. . . his expect-

ation is not "one that society is

prepared to recognize as 'reason-

able'.'' Katz v. United States

(1967) 389 U.S. 347, 361. (Harlan,

J., concurring). Rakas v. Illinois

(1978) 349 U.S. 128, 143-144, mn. 12.

A burglar in someone else's cabin is hardly

comparable to a driver of his own automobile with

securely wrapped packages in his luggage compartment.

-2h-

turn on the presence or absence of locks

and seals. Locks and seals "have nothing

to do with legitimate expectations of pri-

vacy where the police are concerned. We

lock our things to keep out those disposed

to violate the law, not those who enforce

it.'' People v. Pace, 92 Cal.App.3d 199,

205 (1979).

Except for those who may view the

Streets of our society as an armed camp,

any container which preserves the privacy

of its contents creates a legitimate ex-

pectation that the privacy will not be

violated. And even those who feel threat-

ened in the streets would do well to employ

a nondescript bag rather than a piece of

luggage which Invites curiosity about the

value of its contents.

Essentially the Solicitor General asks

this Court to override the presumption in

favor of warrants and to produce a new ex-

ception to the Warrant Clause for so-called

-25-

“insubstantial containers.'' No such ex-

ception is required since the principles

underlying the Warrant Clause already deal

with such needs. Emergencies, material in

plain view, consent and other waivers have

been designed to and do protect societal

needs The Solicitor General identifies

no particular "societal needs" to justify

the exception they propose.

Unfortunately, the Solicitor General

does not apply his "insubstantial test" in

a straightforward fashion. He urges that

the packages in this case, which the Cali-

fornia Court of Appeal found were ''securely

wrapped" (Opinion at iii, Petition For A

Writ of Certiorari, No. 78-567) and ''tape

4 if a container is actually so insubstantial

that it is torn, the contents may be in plain view

and the right to a warrant may be waived. But if

the wrappings of a parcel are not torn, what are

the "identified needs of society'' which require

the police to tear it open without a warrant? Or

if a container in an automobile is litter, a paper

cuptor any other trivial container, it might be

argued that privacy has been waived or that the

police are not on notice of privacy interests.

-26-

secured" (Opinion at A-5, Petition For A

Writ of Certiorari, No. 80-148), are "in-

secure parcels.'"' Likewise, although the

Solicitor General claims that the police-

man should take into account the location

of the package and the precautions taken

to secrete it (Brief For The United States

As Amicus Curiae at p. 15, n. 9), the So-

licitor General ignores the fact that the

packages in this case were located along-

side luggage in a luggage compartment under

the floor in the rear deck of a station

wagon.

Given this type of application of their

own test, scne must ask what kind of line

this test draws. How well hidden must a

container be before the police are to be

deemed to be on notice that the location

is an indicia of privacy? How "substantial"

must the package be to pass the test? How

much "structural integrity" is enough?

These questions led the en banc United

-27-

States Court of Appeals for the District

of Columbia to reject the Solicitor Gen-

eral's test in an opinion, the reasoning of

which we adopt. United States v. Ross,

Be OP Beco. (hekek 3 1961):

As Justice Cardozo articulated in an-

other context, administrative discretion

must not be “unconfined and vagrant. It

[must be] canalized within banks that keep

it from overflowing.'' Panama Refining Co.

v. Ryan, 392 U.S. 388, 440 (1935) (dissent-

ing opinion). Tests founded upon subjec~

tive evaluations of whether an expectation

of privacy is so "intense" or a container

is so "substantial'’ fail to create any

banks at all.

lV

CONCLUSION

The District of Columbia Circuit has

rendered an important en banc decision in

-28-

EN eee

United States v. Ross (No. 79-1624, March

31, 1981) which is a powerful protection

for opaque packages lawfully seized by the

police. While petitioner's packages were

even more securely sealed and protected

than the pouch and paper bag involved in

Ross, and thus the full extent of the Ross

decision need not be passed upon in this

"case, its discussion is enlightening.

Eight judges?

agreed in Ross that a

warrant is required for the opening of an

opaque container lawfully seized by the

police, absent emergency conditions. They

pointed out that there is already such pro-

tection for "luggage'' whether locked or

unlocked and whether in public view or not.

They held that a constitutional rule pro-

tecting ''luggage'' but not less expensive

? Seven judges signed the majority opinion and

Judge Wilkey agreed with it on the merits, dissent-

ing on a retroactivity point. Three judges dis-

sented on the point that a paper bag qualifies as

"luggage.''

-29-

containers would protect the wealthy, the

well-advised and the fastidious at the ex-

pense of the general population and that a

rule based upon durability of the container

would impose an "unreasonable and unmanage-

able burden on police and courts." (Slip

opinion, p. 4.) It held that the insub-

stantial container rule "would destroy the

coherence of a well-established, clear,

eminently manageable rule that, absent

special necessity, a search must rest upon

a search warrant." (Slip opinion, p. 22.)

For the reasons stated, the judgment

below deprives petitioner and countless

others of precious constitutional rights

of security and privacy and must be

reversed.

Dated: April 15, 1981

Respectfu submitted,

Able

JOSEPH G. BAXTER

MARSHALL W. KRAUSE

Attorneys for Petitioner

-30-

PROOF OF SERVICE BY MAIL

1 am a citizen of the United States, over the

age of 18 years, employed in the County of Marin,

in which county the within mentioned mailing oc-

curred, and not a party to the within mentioned

cause. My business address is Wood Island, Suite

207, 60 E. Sir Francis Drake Blvd., Larkspur, CA

94939. On April 17, 1981 | served the within

Petitioner's Reply Brief on the parties in said

actionby placing three true copies thereof, en-

closed in a sealed envelope with postage thereon

fully prepaid, in the United States mail at

Larkspur, California, addressed as follows:

Ronald E. Niver, Deputy Attorney General

Department of Justice

6000 State Building

San Francisco, CA 94102

Solicitor General of the United States

Department of Justice

Washington, D.C. 20530

State Public Defender of California

107 South Broadway, Suite 9111

Los Angeles, CA 90012

| declare under penalty of perjury that the

foregoing is true and correct.

Executed on April 17, 1981, at Larkspur,

California.