Amicus Brief — Robbins v. California

No. 80-148

APR 6 {961

* ST EVA S

In the Supreme Court of the United States

OCTOBER TERM, 1980

JEFFREY RICHARD ROBBINS, PETITIONER

Vv.

THE PEOPLE OF THE STATE OF CALIFORNIA

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL FOR THE STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT, DIVISION FOUR

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

WapE H. McCREE, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

JOHN FICHTER DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

a

|

QUESTION PRESENTED

Whether a warrantless search, based upon prob-

able cause, of plastic-wrapped parcels found in peti-

tioner’s automobile during a lawful search of the

automobile was reasonable under the circumstances

presented and thus permissible under the Fourth

Amendment.

{I)

TABLE OF CONTENTS

Page

Interest of the United States ......... PAL TO SY Aree 1

ERE ESTAS. Lai SESE ae a ne ae

I a 5

Argument:

The Fourth Amendment permits law enforcement

officials to conduct warrantless searches, based

on probable cause, of insubstantial containers

not commonly recognized as repositories for per-

UE I hte ec 7

I cs secsicinsallasned 24

TABLE OF AUTHORITIES

Cases:

Almeida-Sanchez Vv. United States, 418 U.S. 266...... 21

Arkansas Vv. Sanders, 442 U.S. 758 ..........----cecccc0--- passim

Bondholders Committee v. Commissioner, 315 U.S

WRIT EG EI ERA te, alk ae 19

Bowen V. United States, 418 U.S. 916 ...................... 21

Bowen V. United States, 422 U.S. 916 ...................... 19, 21

Boyd v. United States, 116 U.S. 616 ..................0..... 23

Cady v. Dombrowski, 418 U.S. 488 .......................... 13

Cardwell v. Lewis, 417 U.S. 588 ............ 18,18

Carroll v. United States, 267 U.S. 182 .......... 14, 20, 22, 23

Chambers v. Maroney, 899 U.S. 42 ...................... 14, 20, 22

Colonnade Catering Corp. v. United States, 397

RRR a8 aR SAW Ur aS i 18-14

Coolidge v. New Hampshire, 408 U.S. 448 ........... 19

Cooper Vv. California, 886 U.S. 58 ................0..00.0..... 22, 24

Jackson, Ex parte, 96 U.S. 727 .............cccccece eee 15

NAACP vy. Alabama ex rel. Patterson, 357 U.S.

IED SSE SRE te RIO CE OTE E 22

NAACP v. Alabama ex rel. Patterson, 360 U.S.

RO SERN OE EES Re SETS NTT cE 21

People Vv. Minjares, 24 Cal. 8d 410, 591 P. 2d 514,

158 Cal. Rptr. 224, cert. denied, 444 U.S. 887.... 19, 20,

21

(mI)

| PREVIOUS PAGE WAS BLANK }

IV

Cases—Continued : Page

Rakas V. Illinois, 489 U.S. 128 .............. 5, 11, 18, 15, 28, 24

Schleis v. United States, 443 U.S. 905.000.000.000... 21

South Dakota v. Opperman, 428 U.S. 864 .............. 18

United States v. Berry, 571 F.2d 2, cert. denied,

I NII cdccnicssh dats ininirncksiaiiblenadecdiamatitastibcth lta. 20-21

United States v. Biswell, 406 U.S. 811 ..........0......... 18

United States v. Brown, 635 F.2d 1207 .................. 10

United States v. Bush, Nos. 80-1116, etc. (3d Cir.

| | ) ENE aN Cty Casas, 2, 10

United States v. Calandrella, 605 F.2d 286, cert.

GUI, GI BE ices nee esikscctectmseetessleniaeectin 20, 21

United States v. Chadwick, 483 U.S. 1........ 6, 8, 18, 14, 19,

20, 21

United States v. Dien, 609 F.2d 1088, adhered to

on rehearing, 615 F.2d 10 0000000. 10, 12, 15

United States v. Evans, 481 F.2d 990 ................ 20

United States v. Finnegan, 568 F.2d 687 ................ 20

United States v. Foskey, 636 F.2d 517...................... 10

United States v. Gaultney, 581 F.2d 1187 ................ 12, 18

United States v. Gooch, 608 F.2d 122 ........... 10

United States v. Goshorn, 628 F.2d 697 .................. 10, 11

United States v. Honigman, 633 F.2d 1886 ......... 10, 16

United States v. Jimenez, 626 F.2d 89 ................ 10, 12, 18

United States v. Mackey, 626 F.2d 684 .......... 10, 11, 16, 28

United States v. Mannino, 635 F.2d 110 ........ 10, 16, 17-18

United States v. Markland, 685 F.2d 174 ............ 10, 15, 18

United States v. Medina-Verdugo, Nos. 79-1042,

79-1309 & 79-1314 (9th Cir. Oct. 28, 1980) ........ 20

United States v. Meier, 602 F.2d 258 ...........0.......... 10

United States v. Miller, 608 F.2d 1089 .................... 9-10

United States v. Montano, 613 F.2d 147 .................. 10

United States v. Moore, 562 F.2d 106, cert. denied,

Tata ee eI Bie 8 17

United States v. Peltier, 422 U.S. 581 ...................... 20, 21

United States v. Presler, 610 F.2d 1206 .................. 9

United States v. Ross, No. 79-1624 (D.C. Cir. Apr.

BIN Pi tiistioncccdninniipditecinniieaaanons 9, 10, 11, 12, 15, 16, 19

United States v. Ross, No. 79-1624 (D.C. Cir.

BE Cities MII ecincissihanitee sce, Ddshuaaiditiaiaminsie teaname 9

United States v. Schleis, 582 F.2d 1166 .................. 20-21

Vv

Cases—Continued : Page

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

ne wemnene 20

United States vy. Stewart, No. 79-2710 (9th Cir.

Mar. 2, 1981) (“Stewart I9"") ...........ccccccccccccccsss. 20

United States v. Sutton, 686 F.2d 96 ................. 10

Constitution and statutes:

United States Constitution, Fourth Amendment....passim

Cal. Health & Safety Code:

IIE BOT) c.ccccccccccscccassoccnccvccvccccocecesce

IPO EPOIID. oc... scccsccsccssvscocesnccsccocansovse

TTI BIUUD icsccscancescssscccscscceccccsscecesesece

§ 11470 (West Cum. Supp. 1981) .............. ee

§ 11478 (West Cum. Supp. 1981) 2.0.00...

& BR to row

Miscellaneous:

2 W. LaFave, Search and Seizure (1978) .............. 16

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-148

JEFFREY RICHARD ROBBINS; PETITIONER

Vv.

THE PEOPLE OF THE STATE OF CALIFORNIA

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL FOR THE STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT, DIVISION FOUR

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents an important and frequently

recurring question of Fourth Amendment law con-

cerning the necessity of procuring a warrant in order

to conduct a search upon probable cause of a parcel,

bag, or other insubstantial or insecure container not

commonly used as a place of safekeeping for personal

effects. Although the court below held that the war-

rantless search of packages containing marijuana

bricks was permissible because their outward appear-

ance strongly suggested that they contained marijuana

(Pet. App. A-6), the case presents the broader ques-

tion whether a warrant must ordinarily be obtained

in order to examine, with probable cause, the con-

(1)

—_ —

2

tents of insubstantial packages and containers that

are not the functional equivalent of luggage.

This Court’s observation in Arkansas v. Sanders,

442 U.S. 753, 764 n.13 (1979), that “[n]ot all con-

tainers and packages found by police during the

course of a search will deserve the full protection of

the Fourth Amendment” has spawned a host of deci-

sions in the lower courts classifying various contain-

ers, distinguishing between those in which an indi-

vidual’s privacy rights are sufficient to justify requir-

ing that a warrant be obtained, where feasible, prior

to any search, and those whose less private character

permits a search on probable cause subject only to

post-search judicial scrutiny. For the most part, these

decisions hold warrants required to search contain-

ers that are, by their appearance or accepted use,

comparable to personal luggage, but that society is

not prepared to recognize a comparable privacy in-

terest in other less substantial or private containers.

See pages 9-10, and notes 3 & 5, infra. Whether

the need to obtain a warrant before searching a con-

tainer following its lawful seizure turns upon its

status as a “common repository for one’s personal

effects,” Arkansas v. Sanders, supra, 442 U.S. at 762,

or whether a different standard should govern, is a

question of considerable importance for federal law

enforcement activities.

STATEMENT

Following denial of his motion to suppress evidence

and a jury trial, petitioner was convicted in the Su-

perior Court for Solano County, California, upon

charges of possession of marijuana, possession of

marijuana for sale, and transportation of marijuana,

in violation of Sections 11357, 113859 and 11360, re-

3

spectively, of the California Health and Safety Code

(West 1975). The Court of Appeal affirmed the

judgment. This Court granted petitioner’s prior peti-

tion for certiorari, 448 U.S. 903 (1979), vacated the

judgment of the Court of Appeal, and remanded the

case for further consideration in light of Arkansas v.

Sanders, 442 U.S. 753 (1979). On remand the Court

of Appeal adhered to its prior decision in relevant

respects (Pet. App. A-1 to A-13). The California

Supreme Court declined to review the decision of the

Court of Appeal (Pet. App. A-14).

1. The evidence at the suppression hearing estab-

lished that in the early morning hours of January 5,

1975, two California Highway Patrol officers stopped

petitioner’s station wagon after observing him driv-

ing erratically. After meeting the officers between

the vehicles, petitioner began talking rapidly and ex-

hibited difficulty in removing his license from his wal-

let. When petitioner returned to his vehicle to secure

his vehicle registration and opened the door, one of

the officers smelled marijuana smoke and observed on

the front seat a pair of tweezers of the type used to

hold marijuana roaches. He also found a pair of

tweezers holding a burned, hand-rolled cigarette butt,

an alligator clip, a hand-rolled cigarette, and a cookie

tin containing marijuana seeds, two packs of ciga-

rette papers, and a plastic baggie containing mari-

juana, all in the passenger compartment (Pet. App.

A-2 to A-3).

While one officer was retrieving these objects, peti-

tioner stated to the other officer: ‘What you are look-

ing for is in the back.” Petitioner was placed in the

patrol car, and an officer opened the luggage com-

partment of his station wagon. In it he found a tote

bag and two bulky packages wrapped in opaque,

4

green plastic and covered by an outer layer of trans-

parent plastic. Each layer of plastic was sealed on

the outside with a strip of tape. The officer opened

all the packages. Each plastic-wrapped package con-

tained a 15-pound block of marijuana; the tote bag

contained approximately three pounds of marijuana

(Pet. App. A-8, A-5, A-11 to A-12).

2. After this Court’s remand, a divided Court of

Appeal upheld the search of the plastic-wrapped pack-

ages,’ distinguishing the luggage held to have been

improperly searched in Arkansas v. Sanders, supra.

Relying on the language in that decision that “some

containers (for example a kit of burglar tools or a

gun case) by their very nature cannot support any

reasonable expectation of privacy because their con-

tents can be inferred from their outward appear-

ance” (Pet. App. A-4, quoting 442 U.S. at 764-765

n.13), the Court of Appeal reasoned (Pet. App. A-6)

that

the very appearance of a bulky, fifteen pound,

brick-shaped, plastic-wrapped package suggested

that it contain[ed] a specific type of contraband

(a brick of marijuana). * * * Any experienced

observer could have inferred from the appearance

of the packages that they contained bricks of

marijuana.”! The parcels thus could not support

a reasonable expectation of privacy and were not

protected by the Fourth Amendment.

10QOn remand, the State conceded that the warrantless

searches of the cookie tin and tote bag were improper (Pet.

App. A-6). The correctness of those concessions is not before

this Court.

2 During the suppression hearing, the officer who opened the

packages testified that he had heard that blocks of marijuana

were customarily wrapped and transported in this manner

(A. 41).

5

SUMMARY OF ARGUMENT

The California Court of Appeal reached the correct

result in this case by applying, in response to this

Court’s remand, the exception to the warrant require-

ment noted in Arkansas v. Sanders, supra, 442 U.S.

at 764-765 n.13, applicable to containers and pack-

ages whose very nature does not “deserve the full

protection of the Fourth Amendment.” In Sanders,

this Court left to the lower courts the job of “deter-

mining which parcels taken from an automobile re-

quire a warrant for their search and which do not.”

Ibid. In response to this mandate, the state and fed-

eral courts have distinguished between containers

akin to luggage, or that normally function as resposi-

tories for personal effects or papers, as to which a

warrant is required, and insubstantial or insecure

paper or plastic bags and packages, which ordinarily

do not support expectations of security, integrity

and privacy sufficient to require that the existence of

probable cause be determined by a magistrate in ad-

vance of the search.

These decisions, including the decision of the Court

of Appeal in this case, are sound and supported by

the applicable decisions of this Court. Considering

traditional indicia of Fourth Amendment protection,

including the precautions taken by an individual

claiming Fourth Amendment protection to preserve

privacy, the conduct of the individual, and applicable

property rights, see Rakas v. Illinois, 489 U.S. 128,

152-153 (1978) (Powell, J., concurring), the lower

courts have properly concluded that packages such as

those at issue here do not fall within the protection of

the Warrant Clause. The traditional uses of contain-

ers such as paper bags, and their inherent insecurity

and impermanence, set them apart from containers

6

such as the luggage that was searched in Arkansas v.

Sanders, supra, and United States v. Chadwick, 433

U.S. 1 (1977). The configuration and use of such

casual containers militates against extending the

warrant requirement, applied to luggage in Chadwick

and Sanders, to the plastic wrapped parcels at issue

here. Nothing in petitioner’s conduct signaled that he

viewed these parcels as matter deserving of protection

on a par with luggage. Indeed, petitioner volunteered

their location and clearly implied that they contained

contraband, in a spontaneous declaration to the

officers.

The conclusion that petitioner’s packages were not

invested with sufficient attributes of privacy to re-

quire a warrant prior to their search upon probable

cause is considerably reinforced by the fact that their

inspection was part of a search of petitioner’s auto-

mobile that was lawful without a warrant under the

Fourth Amendment. It is true, as the Court held in

Sanders, that the mere fact that a container has been

found in or seized from an automobile does not ipso

facto remove the requirement—applicable if the con-

tainer were found elsewhere—that a warrant be pro-

cured. But this was because the container in Sanders,

personal luggage, is a common repository for personal

effects, invested by society with markedly higher pri-

vacy value than the automobile itself. Insubstantial

containers such as petitioner’s plastic-wrapped brick

of marijuana, on the other hand, are not accompa-

nied by the same substantial societal privacy expec-

tations and cannot meaningfully be differentiated, for

purposes of determining whether a warrant should

be required, from such areas as the locked trunk or

glove compartment of the automobile. Accordingly,

unlike the situation in Sanders, the same general

7

considerations that allow a warrantless probable

cause search of an automobile justify treatment of

containers such as petitioner’s on the same basis.

ARGUMENT

THE FOURTH AMENDMENT PERMITS LAW EN-

FORCEMENT OFFICIALS TO CONDUCT WARRANT-

LESS SEARCHES, BASED ON PROBABLE CAUSE,

OF INSUBSTANTIAL CONTAINERS NOT COM-

MONLY RECOGNIZED AS REPOSITORIES FOR

PERSONAL EFFECTS

The decision of the California Court of Appeal

turned on the court’s conclusion, disputed by the

dissenting judge, that the parcels searched here are

the kind of containers as to which no warrant is nec-

essary to support a probable cause search because

their content is evident from the nature of the con-

tainer. See Arkansas v. Sanders, supra, 442 U.S. at

764-765 n.138. But the facts of this case, and the

questions presented by petitioner, raise the more gen-

eral issue whether packages or containers lawfully

seized can be opened on the basis of probable cause,

but without a warrant, where the nature of the pack-

age, its location, the lack of precautions taken to as-

sure privacy, or the behavior of the person claiming

Fourth Amendment protection indicate the absence

of that legitimate expectation of a high level of pri-

vacy which has traditionally been guarded by the

warrant requirement. Accordingly, the focus of our

argument is only incidentally upon those special char-

acteristics of the parcels at issue here that indicated

their contents, but more generally addressed to the

limited privacy interest that attaches to packages and

containers of their general character, which are not

commonly considered to be repositories for personal

effects.

8

1. The Fourth Amendment has been interpreted

to require that “normally searches of private property

be performed pursuant to a search warrant issued

in compliance with the Warrant Clause.” Arkansas

v. Sanders, supra, 442 U.S. at 758 (footnote omit-

ted). Accordingly, on two recent occasions this Court

has held that absent exigent circumstances, consent,

or circumstances constituting a proper search incident

to an arrest, a warrant is required before law en-

forcement officials may search luggage, even though

they have probable cause to believe that it contains

contraband or evidence of a crime, and even though

the luggage is taken from a motor vehicle by police.

Arkansas vy. Sanders, supra, 442 U.S. at 762-766

(suitcase) ; United States v. Chadwick, 483 U.S. 1

(1977) (double-locked footlocker). Noting that the

established “automobile exception” to the warrant

requirement rests in part on the “configuration, use,

and regulation of automobiles [which] often may

dilute the reasonable expectation of privacy that ex-

ists with respect to differently situated property,”

Arkansas v. Sanders, supra, 442 U.S. at 761, the

Court declined to extend the automobile exception to

luggage, observing that “luggage is a common reposi-

tory for one’s personal effects, and therefore is in-

evitably associated with the expectation of privacy.”

Id, at 762, citing United States v. Chadwick, supra,

433 U.S. at 18. Because society recognizes luggage

as a personal sanctuary, its placement in an automo-

bile does not vitiate the reasonable and substantial

expectation of privacy associated therewith. Accord-

ingly, the fact that a suitcase is lawfully seized from

an automobile based upon probable cause does not

justify dispensing with the warrant requirement.

Arkansas v. Sanders, supra, 442 U.S. at 762.

9

On the other hand, the Court made it clear that

“Tn]jot all containers and packages found by police

during the course of a search will deserve the full pro-

tection of the Fourth Amendment,” offering by way

of example

containers (for example a kit of burglar tools

or a gun case) [which] by their very nature can-

not support any reasonable expectation of pri-

vacy because their contents can be inferred from

their outward appearance. Similarly, in some

cases the contents of a package will be open to

“plain view,” thereby obviating the need for a

warrant, * * * There will be difficulties in deter-

mining which parcels taken from an automobile

require a warrant for their search and which do

not. Our decision in this case means only that a

warrant generally is required before personal

luggage can be searched * * *.

Arkansas v. Sanders, swpra, 442 U.S. at 764-765

n.13. While this caveat left the status of containers

other than personal luggage “hanging in limbo,” id.

at 768 (Blackmun, J., dissenting), the lower courts

have shouldered the task of determining which kinds

of containers and packages activate the warrant re-

quirement of the Fourth Amendment. Invalidation

of warrantless probable cause searches has generally

been reserved for searches of containers that nor-

mally function as repositories for personal effects or

papers, or that represent the functional equivalent of

luggage, such as suitcases, briefcases, purses, duffle

bags, knapsacks, and gym bags.* With the exception

3 See, e.g., United States v. Ross, No. 79-1624 (D.C. Cir.,

Apr. 17, 1980), (leather pouch; collecting cases) (panel opin-

ion), adhered to in relevant part on rehearing en banc (Mar.

31, 1981) ; United States v. Presler, 610 F.2d 1206 (4th Cir.

1979) (briefcases) ; United States v. Miller, 608 F.2d 1089

'*

10

of the en bane decision by the District of Columbia

Circuit in United States v. Ross, No. 79-1624 (Mar.

31, 1981),* the courts of appeals have uniformly

declined to extend the warrant requirement to paper

and plastic bags and packages.°

2. In drawing this line, the courts of appeals have

been guided not only by the language of Sanders but

by the factors that have traditionally been employed

to determine the scope of Fourth Amendment protec-

(5th Cir. 1979) (portfolio) ; United States v. Montano, 6138

F.2d 147 (6th Cir. 1980) (suitcase) ; United States v. Meier,

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

*The decision of the en banc court of appeals in Ross,

overturning the panel decision and creating a conflict among

the courts of appeals, was rendered just before this brief was

completed. Accordingly, unless otherwise indicated, refer-

ences in this brief to Ross refer to the panel opinion. We re-

main convinced that the panel opinion was sound in its con-

clusions regarding the status of paper bags under the Fourth

Amendment.

5 See United States v. Ross, supra (paper bag; collecting

cases) (panel opinion), overturned in relevant part on re-

hearing en bane (Mar. 31, 1981); United States v. Foskey,

636 F.2d 517 (D.C. Cir. 1980) (paper bag); United States

v. Goshorn, 628 F.2d 697 (1st Cir. 1989) (plastic and paper

bags); United States v. Mannino, 685 F.2d 110 (2d Cir.

1980) (plastic bag); United States v. Markland, 635 F.2d

174 (2d Cir. 1980) (beverage bag); United States v. Bush,

Nos. 80-1116, etc. (8d Cir. Mar. 24, 1981) (cardboard box) ;

United States v. Sutton, 686 F.2d 96 (5th Cir. 1981) (phar-

macy bag) ; United States v. Brown, 685 F.2d 1207 (6th Cir.

1980) (closed paper bag) ; United States v. Jimenez, 626 F.2d

39 (7th Cir. 1980) (paper bag); United States v. Mackey,

626 F.2d 684 (9th Cir. 1980) (same); United States v.

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

States v. Gooch, 603 F.2d 122 (10th Cir. 1979) (plastic bags

of marijuana) ; but cf. United States v. Dien, 609 F.2d 1088

(2d Cir. 1979), adhered to on rehearing, 615 F.2d 10 (1980).

11

tion: the precautions taken to preserve privacy, the

manner in which the interested individual has em-

ployed the object or location to be searched, and ap-

plicable property rights insofar as they also reflect

widely-shared privacy expectations. See Rakas v.

Illinois, 439 U.S. 128, 152-153 (1978) (Powell, J.,

concurring). Particularly significant has been the

individual’s demonstrated interest or lack of interest

in assuring privacy, as evidenced by the nature of the

container chosen. For instance, in distinguishing a

paper bag from the luggage at issue in Sanders, the

panel in Ross noted that

paper bags offer at best only minimal protection

against accidental and deliberate intrusions. A

paper bag can fall open or break open very eas-

ily. It presents no real obstacles to invasions by

the curious or the dishonest once it has left its

owner’s actual possession. Because it is neither so

secure nor so permanent as typical forms of lug-

gage, its contents are much more likely to be-

come subject to public display than if the same

items had been stored in luggage. Thus, it is

doubtful that one realistically can expect a paper

bag to remain closed or intact, its contents un-

revealed, at least if it has left its owner’s hands.

United States v. Ross, supra, slip op. 14 (citation

omitted).* Accord: United States v. Goshorn, 628

F.2d 697, 700 (1st Cir. 1980); United States v.

Mackey, 626 F.2d 684, 687 (9th Cir. 1980).

In determining whether a warrant is required to

conduct a probable cause search of an insubstantial

or insecure container, the courts of appeals have also

looked to the conduct of the individual claiming

6 See note 4, supra.

12

Fourth Amendment protection, insofar as it reflects

his or her expectations of privacy. For instance, in

United States v. Jimenez, 626 F.2d 39, 41 (7th Cir.

1980), the court of appeals’ conclusion that the de-

fendant lacked a high expectation of privacy regard-

ing the contents of a paper bag she had been observed

placing in her automobile trunk was supported in

part by defendant’s acknowledgement that the bag

contained contraband. See also United States v.

Gaultney, 581 F.2d 1187, 1143 (5th Cir. 1978). On

the other hand, in United States v. Dien, 609 F.2d

1038, 1045 (2d Cir. 1979), the court held that the de-

fendants had manifested a reasonable expectation of

privacy by placing marijuana in sealed cardboard

boxes secreted behind a plywood partition and

painted-over windows in a truck.’ See United States

v. Ross, supra, slip op: 15 nn.5 & 6.

8. Contrary to petitioner’s contention (Br. 24-40),

the decisions of the lower courts applying these cri-

teria do not depart from the teachings of this Court.

First, petitioner errs in assuming (Br. 48) that the

examples given in Arkansas v. Sanders, swpra, 442

U.S. at 764-765 n.13, of containers that do not com-

mand “the full protection of the Fourth Amendment”

are exhaustive. This Court clearly signaled that it

did not mean to decide all future cases, offering only

examples of instances where diminished privacy ex-

pectations justify dispensing with a warrant and de-

liberately leaving the application of the general prin-

ciple announced to development in the lower courts.

7 Without acknowledging that Dien was correctly decided,

we cite it simply to illustrate the kind of inquiry employed

by the courts of appeals to determine whether an expectation

of privacy protected by the Warrant Clause was attached to

a container that has been searched.

13

Ibid. In response to that mandate, the lower courts

have, with substantial uniformity, distinguished be-

tween substantial sealed containers vested with the

full privacy attributes of luggage on the one hand,

and such containers as paper bags and casually

wrapped packages on the other. See notes 3 and

5, supra. The resulting body of law provides a

serviceable and fair means of distinguishing between

those instances in which a warrant is required and

those where none is required.

Petitioner errs as well in suggesting (Br. 36-40)

that the basic criterion applied—whether the indi-

vidual claiming Fourth Amendment protection had a

reasonable expectation of privacy—is applicable only

to the threshold question whether or not a search has

occurred, and not to the question whether a warrant

is required for a probable cause search. Indeed, in

both Arkansas v. Sanders, supra, 442 U.S. at 764-

765 n.13, and United States v. Chadwick, supra, 438

U.S. at 18, this Court applied the reasonable expec-

tation of privacy test to determine whether or not an

examination acknowledged to be a search subject to

the Fourth Amendment was permissible absent a war-

rant. See also Rakas v. Illinois, supra, 439 U.S. at

152. (Powell, J., concurring). Similarly, the auto-

mobile exception to the warrant requirement has been

expressly attributed to the lessened expectation of

privacy inhering in automobiles, and plainly does not

turn on any conclusion that no search is involved.

Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (opinion

of Blackmun, J.) ; Cady v. Dombrowski, 413 U.S. 433,

442 (1973) ; cf. South Dakota v. Opperman, 428 U.S.

364, 367 (1976). Reduced expectations of privacy

also justify warrantless administrative searches of

pervasively regulated businesses. United States v.

Biswell, 406 U.S. 311, 316 (1972) ; Colonnade Cater-

vw

14

ing Corp. v. United States, 397 U.S. 72, 74, 77

(1970).

The decision of the California Court of Appeal, like |

the numerous decisions of the United States Courts of

Appeals holding no warrant required for searches of

various kinds of bags and insecure parcels, rests fun-

damentally upon the “configuration * * * [and] use”

of the containers involved, a fundamental basis for

the automobile search exception. Arkansas v. Sanders,

supra, 442 U.S. at 761. Just as an automobile oper-

ated on public roads must, as a practical matter, be

deemed subject to a degree of official and unofficial

scrutiny quite different from that affecting a home or

office, Carroll v. United States, 267 U.S. 182, 153

(1925); Chambers v. Maroney, 399 U.S. 42, 48

(1970), a plastic bag or parcel lacks the integrity,

privacy and security attributes of luggage that ex-

plain the results in Chadwick and Sanders. See 442

U.S. at 764.

To be sure, various types of containers besides suit-

cases and footlockers—such as briefcases, knapsacks,

and duffle bags—may be “inevitably associated with

the expectation of privacy.” Arkansas v. Sanders,

supra, 442 U.S. at 762, quoting United States v.

Chadwick, supra, 483 U.S. at 18. In general, such

items are repositories for clothing, toiletries, personal

or business records, and the most intimate of items

associated with daily living. The same, however,

cannot be said of paper grocery sacks, plastic bags, or

packages of a similar nature. The intended and typi-

cal function of these containers is to facilitate the

movement of merchandise, or to contain bulk items.’

8 The dissenting judge in the Court of Appeal likened the

photograph of the package in this case to a package of high-

way flares he had recently purchased (Pet. App. A-11). What-

ever force this observation may have to rebut the majority’s

conclusion that the package manifestly contained a brick of

15

We recognize, of course, that a common grocery bag

or a similar container may at times be pressed into

service as a repository for personal effects. But such

atypical use, without more, does not invest such con-

tainers with the protection of the Warrant Clause,

for unrepresentative use is not part of the con-

ventional “understandings that are recognized and

permitted by society,” which are the touchstone for

assessing the scope of Fourth Amendment protection.

Rakas v. Illinois, swpra, 489 U.S. at 144 n.12.°

marijuana (and the dissenter overlooked the fact that the

officer could feel as well as see the package), it simply high-

lights the fact that parcels of this sort are generally unlikely

to have very private contents.

® For instance, we doubt that one who chooses to live in

his automobile would thereby render the automobile search

exception inapplicable to the contents of his automobile. This

case does not present the question whether, by reason of

particular features, the appearance of a parcel, its surround-

ings, the conduct of the person claiming Fourth Amendment

protection or other circumstances, an individual may so mani-

fest his expectation of privacy in a container ordinarily em-

ployed for non-private use as to compel law enforcement offi-

cers to procure a warrant prior to initiating a search. See

United States v. Markland, supra, 685 F.2d at 177; United

States v. Ross, supra, slip op. 15-16 & n.6. It may be, for

instance, that the markings or appearance of a parcel may

make it apparent that it is destined for dispatch by mail—a

status that accords it full protection under the Warrant

Clause. See, e.g., Ex parte Jackson, 96 U.S. 727, 733 (1878).

Or the construction of the container, the precautions taken

to seal and secrete it, or its markings may demonstrate that

the owner desires to retain a high degree of privacy with

regard to its contents. See United States v. Dien, supra, 609

F.2d at 1044-1045 (defendant manifested an expectation of

privacy by securely taping cardboard »oxes and secreting

them behind a plywood barrier in a vehicle whose windows

had been blacked out; but see note 7, supra). Finally, in

some cases, the owner’s circumstances or his surroundings

might make it apparent that a paper bag or similar con-

'*

7%

16

The very nature of such containers is at odds with

a reasonable expectation that their contents will be

protected from public exposure. Unlike a suitcase,

footlocker or other types of luggage, paper bags and

similar packages offer at best only minimal protec-

tion against accidental or deliberate intrusion. Such

items cannot be latched or secured. They are easily

torn, resulting in spillage of their contents or their

disclosure to public view. Indeed, their contents fre-

quently can be discerned merely by observing, hold-

ing, or feeling them.” In short, “it is doubtful that

one realistically can expect a paper bag [or a con-

tainer of a similar character] to remain closed or

intact, its contents unrevealed, at least if it has left

its owner’s hands.” United States v. Ross, supra,

slip op. 14; see United States v. Mannino, supra,

635 F.2d at 114; United States v. Honigman, supra,

633 F.2d at 13888; United States v. Mackey, supra,

626 F.2d at 687; see also, 2 W. LaFave, Search and

Seizure, § 5.5, at 365 (1978).

The principal function served by the warrant in

the case of a search of a seized container is as prophy-

laxis against misjudgment by overzealous officers

regarding the existence of a reasonable basis in

tainer is a repository for his personal effects. Where these or

similar objective factors indicating the special status of a

paper bag or similar package are present, procurement of a

warrant may be necessary before proceeding with a search.

In the absence of such circumstances, the owner’s subjective

expectation of privacy in such a parcel is insufficient to

trigger the warrant requirement.

10 Thus once it is granted, as in the case here, that such a

parcel has been lawfully seized, the contents are likely, given

the nature of the container, to be largely disclosed to an

officer’s sense of touch. Such vulnerability to at least partial

disclosure of a container’s contents without even opening it

suggests a considerably reduced privacy value when com-

pared with luggage.

17

known facts to justify the search. In some propor-

tion of cases, the interposition of a neutral and de-

tached magistrate will serve to prevent an unreason-

able invasion of privacy. A warrant is required in

cases involving luggage because of the judgment that

the costs of an unjustified search of such a high

privacy area are unacceptable, and the prophylaxis

of the warrant requirement has great value when it

prevents such unjustified intrusions. But the costs

associated with a mistaken invasion of relatively low

privacy areas are substantially less, and the benefits

to be gained by requiring a warrant are therefore

greatly diminished.

Accordingly, in contrast with luggage, when a

paper bag or container of similar material or con-

struction comes legitimately into the hands of the

police, the owner’s residual expectation of privacy is

justifiably overcome where, as here, the search is

based upon probable cause. Compare Arkansas v.

Sanders, supra, 442 U.S. at 764. Such a privacy in-

terest, absent unusual circumstances, is simply insuf-

ficient to merit the protection of the Warrant Clause

of the Fourth Amendment. See Cardwell v. Lewis,

supra, 417 U.S. at 590-592 (opinion of Blackmun,

J.) (diminished expectation of privacy in exterior of

motor vehicle permits warrantless examination of

paint and tire treads where probable cause exists) ;

United States v. Moore, 562 F.2d 106, 111 (1st Cir.

1977), cert. denied, 4385 U.S. 926 (1978) (expecta-

tion of privacy in motor vehicle insufficient to require

warrant for attachment of beeper where probable

cause exists) ."

11 We stress that such privacy interests are not unpro-

tected by the Fourth Amendment. Even absent a rea-

sonable expectation of a high degree of privacy, an intrusion

into such a package must still satisfy the general reasonable-

ness requirement of the Fourth Amendment. See United

* |

18

4. Application of these principles to this case sug-

gests the correctness of the result reached below. The

containers at issue were plastic wrapped parcels.

Nothing about their appearance suggested that they

served as the functional equivalent of luggage or as

repositories of personal effects. The plastic material

involved did not constitute a secure permanent bar-

rier against breakage or entry.” Neither the physi-

cal appearance of the package nor the surrounding

circumstances suggest that petitioner regarded these

packages as equivalent to luggage in function or in-

vested with a comparable degree of privacy. The out-

ward appearance of petitioner’s parcels indicated

that their contents were likely a single, bulky, brick-

shaped object, rather than personal effects. Indeed,

petitioner’s spontaneous statement (Pet. App. A-3) to

an officer of the California Highway Patrol that

“Tw]hat you are looking for is in the back”’ precludes

any claim that petitioner held such an expectation of

privacy. United States v. Jimenez, supra, 626 F.2d at

41; United States v. Gaultney, supra, 581 F.2d at

1141.” Nor is the fact that tape was affixed to the

States v. Mannino, supra, 685 F.2d at 118; United States v.

Markland, supra, 635 F.2d at 176 (search in fulfillment of

police duty to protect the property of citizens). See Cardwell

v. Lewis, supra, 417 U.S. at 592 (opinion of Blackmun, J.).

Here, of course, it is undisputed that the search was sup-

ported by probable cause. Where reasonable justification is

lacking, the fruits of a search are subject to suppression and

a civil damage remedy may be available.

12 There is in any event no record support for petitioner’s

claim (Br. 26 n.2) that the packages at issue were wrapped

“in heavy duty plastic similar to a type used in commercial

packaging.”

18The State of California did not urge below that the

search was consented to. Accordingly, the question whether

19

plastic wrapping of the petitioner’s package control-

ling here. While, under some circumstances, sealing

a package with tape might manifest the owner’s spe-

cial expectation of privacy respecting the contents of

the package, see United States v. Ross, supra, slip op.

15-16 n.6, it appears that tape was used here simply

to form a container and prevent spillage. Unlike a

latch or lock on a piece of luggage, which permits

security while making it possible for authorized per-

sons to open and close the container, and reuse it, a

taped parcel simply maintains the contents intact.

Under these circumstances, taping itself is insufficient

to establish the expectation of privacy necessary to

bring the Warrant Clause into play.”

petitioner’s spontaneous statement provides an independent

basis for dispensing with a warrant is not presented here.

Compare Coolidge v. New Hampshire, 403 U.S. 448, 487-490

(1971).

14 The respondent did not urge in the Court of Appeal that

Chadwick and Sanders are inapplicable to the search at issue,

notwithstanding the fact that the search was conducted and

the motion to suppress denied well before either of those cases

was decided. This contention was raised in the State’s oppo-

sition to petitioner’s earlier petition for certiorari, No. 78-

567, but was not pressed upon remand, apparently because

of the intervening decision of the California Supreme Court

in People v. Minjares, 24 Cal. 3d 410, 421 n.6, 591 P.2d 514,

519 n.6, 158 Cal. Rptr. 224, 229 n.6, cert. denied, 444 U.S.

887 (1979), holding, incorrectly in our view, that Chadwick

is to be applied retroactively.

Assuming that the issue may be reached in this Court, as

we think it may, see Bowen v. United States, 422 U.S. 916,

920-921 (1975) ; Bondholders Committee v. Commissioner, 315

U.S. 189, 192 n.2 (1942), the judgment could properly be af-

firmed on the ground that Chadwick and Sanders should not be

given retroactive effect. As evidenced by the original decision

of the Court of Appeal in this case (78-567 Pet. App. iv), the

20

5. Our argument thus far has addressed the ques-

tion whether warrantless searches of containers such

warrantless search of the package at issue here was deemed

to fall within the automobile search exception of Carroll,

supra, and Chambers Vv. Maroney, supra, prior to this Court’s

decision in Sanders. (Indeed, prior to Sanders the United

States Court of Appeals for the Ninth Circuit interpreted

Chadwick as inapplicable to a search even of luggage found

during an automobile search. United States v. Finnegan, 568

F.2d 637 (9th Cir. 1977) ; but see People v. Minjares, supra.

This uncertainty as to the scope of Chadwick occa-

sioned the grant of certiorari in Sanders, supra, 442 U.S. at

754 n.1.) Prior to Chadwick the courts of appeals generally

construed the automobile search exception to encompass

searches of briefcases and luggage found within automobiles.

United States v. Chadwick, supra, 483 U.S. at 23 n.4 (Black-

mun, J., dissenting; collecting cases) ; United States v. Evans,

481 F.2d 990, 993-994 (9th Cir. 1973). Accordingly, Chadwick

and Sanders established new law for California. See United

States v. Stewart, 595 F.2d 500, 508-504 (9th Cir. 1979)

(“Stewart I’’); United States v. Stewart, No. 79-2710 (9th

Cir. Mar. 2, 1981) (“Stewart II’’) ; but see People v. Minjares,

supra, 24 Cal. 3d at 421 n.6, 591 P.2d at 519 n.6, 153 Cal. Rptr.

at 229 n.6; cf. United States v. Medina-Verdugo, Nos. 79-1042,

79-1309 & 79-1314 (9th Cir. Oct. 23, 1980). In this case,

retroactive application of Chadwick and Sanders, if extended

to cover insubstantial containers, would result in suppression

of relevant evidence without providing any deterrent against

unlawful searches or protecting the integrity of the courts.

It would retard, rather than advance the truth-finding func-

tion of the criminal trial. Moreover, there is no suggestion

that the police officers who searched petitioner’s parcel acted

in less than good faith. Accordingly, there is no occasion to

apply Chadwick or Sanders to probable cause searches under-

taken prior to the decision in Chadwick. See United States

V. Peltier, 422 U.S. 531, 535-5389 (1975); Stewart I, supra,

595 F.2d at 503-504; Stewart II, supra, slip op. 593-596;

United States v. Calandrella, 605 F.2d 286, 250-253 (6th

Cir.), cert. denied, 444 U.S. 991 (1979) (collecting cases) ;

United States v. Berry, 571 F.2d 2 (7th Cir.), cert. denied, 489

U.S. 840 (1978) ; but see United States v. Schleis, 582 F.2d

21

as petitioner’s parcel of marijuana are unreasonable

per se under the Fourth Amendment in the absence of

1166, 1173-1174 (8th Cir. 1978); People v. Minjares, supra,

24 Cal. 3d at 421 n.6, 591 P.2d at 519 n.6, 153 Cal. Rptr. at

229 n.6.

As the Sixth Circuit and the Ninth Circuit have noted,

Calandrella, supra, 605 F.2d at 252; Stewart II, supra, slip

op. 594, the retroactivity issue was not presented by the

State’s petition in Sanders or adverted to in the Court’s

opinion, even though the search there at issue antedated

Chadwick. The decision in Sanders accordingly does not

bespeak any view on the retroactivity question. Nor, plainly,

does this Court’s remand (433 U.S. 905 (1977) ) of an earlier

decision by the Eighth Circuit in Schleis, supra, for recon-

sideration in light of Chadwick, or the remand in this case

for reconsideration in light of Sanders, indicate any view on

the retroactivity question. United States v. Calandrella,

supra, 605 F.2d at 252; but see People v. Minjares, supra, 24

Cal. 3d at 421 n.6, 591 P.2d at 519 n.6, 153 Cal. Rptr. at 229

n.6. In Bowen v. United States, supra, this Court originally

remanded (413 U.S. 915 (1973)) the case to the Ninth Cir-

cuit for reconsideration in light of Almeida-Sanchez v. United

States, 413 U.S. 266 (1973). It subsequently held Almeida-

Sanchez non-retroactive (United States v. Peltier, supra)

and, indeed, criticized the court of appeals for reaching the

merits of Bowen’s Fourth Amendment claims on the remand.

See 422 U.S. at 920-921.

We note as well that petitioner’s contention (Br. 60-68)

that the California Court of Appeal impermissibly strayed

from the mandate of this Court, when it reinstated its judg-

ment relying upon language in Sanders, is frivolous. Plainly,

this Court’s action in vacating the Court of Appeal’s prior

judgment and remanding for reconsideration in light of

Sanders required the court of appeal to consider all aspects

of Sanders. If this Court had meant to direct reversal of the

original appellate judgment in this case, as petitioner effec-

tively suggests, ample means for expressing that intention

were available. Petitioner’s reliance on NAACP v. Alabama

ex rel. Patterson, 360 U.S. 240, 244 (1959), is misplaced.

22

consent or exigent circumstances. If our arguments

are sound, warrantless probable cause searches of

such containers comport with the Fourth Amendment

regardless of the location in which the container is

found or from which it is seized. But the argument

has special force in the context of the present case,

where the officers had probable cause to search an

automobile, and the container within was one of the

places where they could reasonably expect to find the

contraband for which they were searching. See Ar-

kansas v. Sanders, supra, 442 U.S. at 767-768 (Bur-

ger, C.J., concurring in the judgment). If, as is well

settled, the privacy interest in an automobile is suffi-

ciently limited that probable cause suffices to justify

a warrantless search of its interior, including a

locked trunk or glove compartment (e.g., Chambers

v. Maroney, supra, 399 U.S. at 48-51; Cooper v. Cali-

fornia, 386 U.S. 58 (1967) ; Carroll v. United States,

supra, the imposition of a warrant requirement re-

specting containers located in the automobile is logi-

cal only upon a conclusion that those containers have

substantial independent privacy attributes that re-

quire that they receive additional Fourth Amendment

protection.

The structural integrity and privacy expectations

invested in a suitcase or footlocker make it reason-

able to discount their location in an automobile by

requiring that a warrant be obtained to complete

their search, absent exigent circumstances. Arkansas

v. Sanders, supra, 442 U.S. at 765. But the insub-

There this Court held that the Supreme Court of Alabama

was barred by this Court’s eariier reversal, 357 U.S. 449

(1958), of the state court’s decision from “re-examining the

grounds” of this Court’s earlier decision. No such re

examination of settled questions has occurred here.

23

stantial plastic wrappings in which petitioner had

bundled his marijuana brick did not meaningfully

differentiate their contents from the other contents

of petitioner’s automobile. The nature of petition-

er’s parcel accordingly would not support a confi-

dent expectation that its contents would remain sep-

arate from the contents of the car in which it had

been placed. See United States v. Mackey, supra, 626

F.2d at 687; cf. Arkansas v. Sanders, supra, 442 U.S.

at 766-768 (Burger, C.J., concurring).

While the placement of a container within an auto-

mobile does not automatically deprive its contents of

the level of protection afforded to such a container in

another setting, the decision to carry a parcel such as

petitioner’s in an automobile, which by reason its

“configuration, use, and regulation” dilutes any ex-

pectation of privacy in its contents, Arkansas v. San-

ders, supra, 442 U.S. at 761, nonetheless reflects

petitioner’s failure to take such precautions to main-

tain his privacy as would manifest that expectation

of a high degree of privacy protected by the War-

rant Clause of the Fourth Amendment. See Rakas v.

Illinois, swpra, 489 U.S. at 152-153 (Powell, J., con-

curring). Accordingly, the setting in which petition-

er’s parcel was discovered provides an additional in-

dication that a warrantless search was reasonable in

the circumstances of this case.”

16 Yet another circumstance which indicates that petitioner

could have little legitimate expectation of privacy in the con-

tents of his parcels is the fact that they contained only

contraband. Contraband is material whose very possession

law proscribes and to whose possession “ ‘the government is

entitled.’”’ Carroll v. United States, supra, 267 U.S. at 149,

quoting Boyd v. United States, 116 U.S. 616, 623 (1886).

California has provided by statute that controlled substances

24

CONCLUSION

The judgment of the California Court of Appeal

should be affirmed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

JOHN FICHTER DE PUE

Attorney

AryRIL 1981

and their containers are subject to forfeiture; warrantless

seizures are authorized in some instances. Cal. Health &

Safety Code §11470 (West Cum. Supp. 1981). Although

marijuana is not technically classified as a controlled sub-

stance, provision is made for disposition of marijuana that

comes into the hands of police. Cal. Health & Safety Code

§ 11478 (West Cum. Supp. 1981). In Cooper v. California,

386 U.S. 58, 60-61 (1967), a warrantless search of an au-

tomobile was upheld based on other provisions o* Califor-

nia law which authorize seizure and forfeiture of any ve-

hicle used for transportation of narcotic substances. Each

of these statutory provisions reflects the diminished prop-

erty rights society recognizes in contraband materials,

and they indicate that such materials cannot support

a substantial expectation of privacy. See Rakas v. Illinois,

supra, 489 U.S. at 153 (Powell, J., concurring). Where, as

here, the wrappings in which contraband is placed do not

themselves reflect an expectation of substantial privacy re-

specting their contents, and in fact permit an observer to

discern the contraband contents without opening the parcel,

the ensuing warrantless search was reasonable and thus

permissible under the Fourth Amendment.

W ov. 8. covernmenty printing orrice; 1981 344440 308