Petitioners Brief — Johnson v. United States

—

No. 80-328

In The

Supreme Court of the Wnited States

OCTOBER TERM, 1980

THE PEOPLE OF THE STATE OF NHW YORK,

Vv,

ROGER BELTON,

Respondent. |

On Writ Of Certiorari To The

Court Of Appeals Of New York

BRIEF FOR THE PETITIONER

JAMES R. HARVEY

‘District Attorney,

Ontario County, New York

Counsel of Record

Ontario County Courthouse

Main Street

Canandaigua, New York 14424

(716) 394-5220

R. MICHAEL TANTILLO

Assistant District Attorney

TIMOTHY J. BUCKLEY

Assistant District Attorney

t

QUESTION PRESENTED

May a police officer search, as incident to a lawful arrest, a

jacket found inside an automobile while the automobile’s four

occupants, all under arrest, are standing unsecured around the

vehicle?

mM

TABLE OF CONTENTS

Page

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NS bk iv oe Vege 4s cad bree SAEs iw

Ne eae Si, aly eae CNC bine baba 1

De ate Nv ce cia KAY aah ¢ 8 Chae Reis 1

Constitutional Provision Involved.................. 2

ee teed bas vagink ass vee as mine Rees 2

Ne, Oa ys ews oe 8's 5

ARGUMENT

I — The search of the respondent’s jacket was properly

conducted as a search incident to the respondent’s

PETERS SERS Si Sie Seana tg a a ea 7

A. The search of the respondent’s jacket falls squarely

under the doctrine of search incident to arrest as

explained in Chimel v. California ...........00 00s 7

B. The decision of Arkansas v. Sanders does not affect

the validity of the instant search................. 20

es aa OE SES eS acess oo ae bo baine 26

PREVIOUS PAGE WAS BLANK |

w

TABLE OF AUTHORITIES CITED

Cases: Page

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

vigils Mate kv eth ts Shae gana eka 6, 13, 14, 20, 21, 22, 23, 24, 25

Banks v. Georgia, 246 Ga. 178, 269 S.E.2d 450 (1980)... .. 15

Carroll v. United States, 267 U.S. 182 (1925) .......... 21

Chambers v. Maroney, 399 U.S. 42 (1970)............. 21

Chimel v. California, 395 U.S. 752 (1969) .............

Raia hatha aie OKUKE bee PUG 5, 6, 7, 8, 13, 17, 18, 19, 20

Dyke v. Taylor Implement Co., 391 U.S. 216 (1967). .... . 11, 20

Lousiana v. Blanchard, 374 So. 2d 1248 (1979)......... 17

Louisiana v. Wilkins, 364 So. 2d 934 (1978) ........... 15

Montana v. Cripps, 582 P. 2d 312 (1978).............. 17

New Jersey v. Welsh, 84 N.J. 346, 419 A.2d 1123(1980).. 16,17

New York v. Earl, 431 U.S. 943 (1977) ............... 19

North Carolina v. Hunter, 299 N.C. 29, 261 S.E. 2d 189

ADE eat ce RENEBIEES RUB Aiea a0 poh i, eae en OR 15

People v. Belton, 50 N.Y. 2d 447 (1980). ............ 10, 19, 20

Preston v. United States, 376 U.S. 364 (1964).......... 11, 20

Rakas v. Illinois, 439 U.S. 128 (1978) ............000. 8

Rhode Island v. Robalewski, 418 A.2d 817 (1980) ....... 17

United States v. Agostino, 608 F.2d 1035 (5th Cir., 1979) . 15

United States v. Ajlouny, 476 F. Supp. 995 (E.D.N.Y.,

is i 8 ERE ACG A a bv eee EC es 15

Page

United States v. Fontecha, 576 F.2d 601 (5th Cir., 1978). . 15

United States v. Foster, 584 F.2d 997 (D.C. Cir., 1978) . . . 15

United States v. Goshern, 628 F.2d 697 (1st Cir., 1980). . . 24

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) . . . 8

United States v. Neumann, 585 F.2d 355 (8th Cir., 1978) . 16

United States v. Ocampo, 492 F. Supp. 1211 (E.D.N.Y.

EES SDSS OR en es Oe 15

United States v. Robinson, 414 U.S. 218 (1973) ...... 12, 13,14

United States v. Schleis, 582 F.2d 1166 (8th Cir., 1978). . . 16

United States v. Wilkerson, 598 F.2d 621 (D.C. Cir., 1978) 15,16

Weeks v. United States, 232 U.S. 383(1914)........... 7

Other Authorities:

Crime in the United States, 1975-1979, Uniform Crime

Reports of the United States Department of Justice. . . 14

Law Enforcement Officers Killed, 1975-1980, Uniform

Crime Reports of the United States Department of

ETSI SOC SS a rr 14

In The

Supreme Court of the United States

OCTOBER TERM, 1980

oe

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

v.

ROGER BELTON,

Respondent.

On Writ Of Certiorari To The

Court Of Appeals Of New York

See

———

BRIEF FOR THE PETITIONER

-——— ~———

~—— —

OPINIONS BELOW

The judgment and opinion of the New York Court of Appeals

(J.A. 75-84) is reported at 50 N.Y.2d 447. The judgment and

opinion of the New York Supreme Court, Appellate Division,

Fourth Department (J.A. 69-73) is reported at 68 App. Div. 2d

198.

JURISDICTION

The judgment of the New York Court of Appeals (J.A. 75) was

entered on June 5, 1980. The petition for a writ of certiorari was

filed on September 2, 1980 and was granted on January 19, 1981.

The jurisdiction of this Court rests upon Title 28, United States

Code, Section 1257 (3).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

STATEMENT

This is a criminal prosecution of the respondent for his

unlawful possession of a quantity of cocaine in Ontario County,

New York on April 9, 1978. The denial of the respondent’s

motion to suppress the. evidence in this case was ultimately

reversed by the New York Court of Appeals, which held that the

search of the respondent’s jacket, from which the contraband

was seized, was not incident to his arrest.

The respondent was a passenger with three male companions

in an automobile being driven along the New York State

Thruway on April 9, 1978, when their car was stopped at ap-

proximately 9:00 o’clock A.M. by New York State Trooper

Douglas Nicot for a speeding infraction. Upon approaching the

vehicle stopped along the shoulder of this interstate nighway, the

Trooper asked its driver for his license and registration. The

operator of the vehicle rolled down his window, at which time

Trooper Nicot smelled the odor of burning marijuana emanating

from within the car through the window (J.A. 14, 17). The

Trooper was provided the car’s registration, from which he

determined that the car belonged to a Buffalo, New York woman

who was not present in the vehicle. The driver also produced a

valid license which was subsequently determined as not his own.

It was at this time that the Trooper noticed, on the front floor-

board, a small manila envelope, stamped “Supergold,” which he

recognized from his experience as a container for marijuana

(J.A. 19-20, 36).

The four occupants of the car were ordered out, the driver from

his side and the three others from the passengers side.! Trooper

Nicot patted down the occupants of the car in the order from

which they alighted, after which all were standing in close

proximity to and around the car (J.A. 19). He also advised the

car’s driver at this time that the latter was to be issued a

summons for speeding. Trooper Nicot then returned to the

automobile and examined the envelope he had previously ob-

served, finding it to contain traces of marijuana (J.A. 20). He also

observed and recovered five or six partially smoked marijuana

cigarettes, or “roaches,” in the car’s ashtrays (J.A. 22, 40).

Trooper Nicot placed the four individuals under arrest for

possession of marijuana, either immediately prior or subsequent

to the discovery of the substance in the car (J.A. 18, 39). Having

only one set of handcuffs, the Trooper did not place them on any

of the four arrestees (J.A. 55, 56). They were advised of their

constitutional rights and searched, after which Trooper Nicot

searched the interior of the automobile in which they had been

riding (J.A. 21). In the course of his search, the Trooper came

across five jackets lying in the middle of the back seat. Neither

the jackets nor the vehicle’s interior had been reduced to the

exclusive control of Trooper Nicot at this time. One of the jackets

was black leather, with several pockets. In searching that jacket,

Trooper Nicot found a twenty dollar bill containing a white

powder in one of the pockets, which he suspected to be cocaine

(J.A. 21, 24). In another zippered pocket was a plastic bag con-

taining a larger amount of white powder. In a third pocket was

found a health insurance card in the name of the respondent

(J.A. 22). All four arrestees denied ownership of the jacket, and

1The respondent had been seated in the rear seat, on the driver's side (J.A. 18).

all were placed under arrest for criminal possession of a con-

trolled substance.”

The Ontario County Grand Jury returned an indictment

against the respondent for criminal possession of a controlled

substance in the fifth degree, while directing that no charges be

filed against his three companions. Subsequent to his

arraignment on the charge, the respondent challenged the search

of the car and his jacket at a suppression hearing, his contention

being that the search was justified by none of the exceptions to

the Fourth Amendment's warrant requirement. However, the

Ontario County Court (Hon. George A. Reed, presiding) ruled

that exigent circumstances did in fact exist, given the nature of

the object searched and the fact that Trooper Nicot, alone, was

confronted by four arrestees in a rural area. The suppression

motion was, therefore, denied (J.A. 65-66).

The respondent later entered a plea of guilty to the reduced

charge of attempted criminal possession of a controlled sub-

stance in the sixth degree. Because he had previously been

convicted of a felony, the appellant was sentenced to an in-

determinate term of one and one-half to three years’ im-

prisonment as a second-felony offender. However, the execution

of this sentence was stayed pending the respondent's appeal.

The appeal was taken as of right to the New York State

Supreme Court, Appellate Division, Fourth Department, where

the respondent’s conviction was unanimously affirmed. In its

opinion, the Court agreed with our contention that the search

was justified as a search incident to arrest, in that the search of

the “immediate area” was “reasonable in scope, intensity and

duration.” Further, permissive appeal to the New York Court of

Appeals was granted, and that court, by a divided vote, sub-

sequently reversed the respondent's conviction and dismissed the

2The white powder was subsequently determined through laboratory analysis

to in fact contain cocaine.

indictment. In its opinion, the Court of Appeals held that once

the respondent had been placed under arrest, his jacket was

within the exclusive custody and control of the Trooper, and it

could not therefore be searched without a warrant.

SUMMARY OF ARGUMENT

A. In Chimel v. California, 395 U.S. 752 (1969), this Court held

that once an arrest is made, the arresting officer may thereupon

search the person of the arrestee and the area “ ‘within his

immediate control’ — construing that phrase to mean the area

from within which (the arrestee) might gain possession of a

weapon or destructible evidence.” Jd. at 763. The purposes of this

rule are twofold: to minimize the potential danger to the

arresting officer and others, and to minimize the likelihood that

evidence may be concealed or destroyed.

Bearing in mind the language and objectives of Chimel, the

actions taken by Trooper Nicot in the instant case, in searching a

jacket in the automobile in which the four arrestees were riding,

is constitutionally unobjectionable as a search incident to a

lawful arrest. Considering the facts that this sole officer was

confronted by four men, all arrested but standing unsecured in

any manner around their car, the conclusion is obvious that any

or all of the four arrestees could reach anything located in the

confines of their car if they so desired. Thus, the right to search

this “grabbable area” was triggered.

The instant case is readily distinguished from United States v.

Chadwick, 433 U.S. 1 (1977), in which the search of a 200-pound

footlocker, one and one-half hours after its possessors’ arrest and

detention, was suppressed. Unlike that case, the search at bar

was contemporaneous “in time and place” with the arrest, id. at

15; therefore, it was incident to the arrest.

The New York Court of Appeals erroneously concluded in this

case that, by telling the four occupants of the automobile that

they were under arrest and by stationing them outside the car,

Trooper Nicot had effectively reduced that car and everything in

it to his exclusive control. Such a grotesquely restricted in-

terpretation of the search incident to arrest doctrine not only

flies in the face of the plain language of Chimel and numerous

decisions of other courts, but also forces an arresting officer to

forego what should be an entirely legitimate search at the risk of

serivus injury or death.

In order to provide guidance to courts faced with determining

the propriety of searches incident to arrest in the future, factors

relevant to an appropriate determination should be more clearly

delineated. Such considerations include the number of arrestees

as opposed to the number of arresting officers; the degree of

restraint, if any, imposed on the arrestees; the relative locations

of the arrestees and the police vis-a-vis the item searched; and

the ease or difficulty inherent in gaining potential access to the

item searched. When the instant case is assessed in light of these

criteria, the conclusion becomes inescapable that the search was

properly conducted.

B. The recent case of Arkansas v, Sanders, 442 U.S. 753 (1979)

does not compel a different conclusion. While striking down the

search of a suitcase taken by police from the trunk of a taxicab,

this Court in Sanders did not have the occasion to consider the

application of the search incident to arrest doctrine to the search

and seizure therein. Beyond that, however, it was quite apparent

in the opinion that even articles normally deserving of an ex-

pectation of privacy may be searched without a warrant where

the exigencies of the situation justify such a search. In the case

at bar, such exigencies certainly existed in the fact that Trooper

Nicot, unlike the police in Sanders, had not reduced the property

searched to his exclusive control at the time of the search. Thus,

the subject search in this case, consistent with the language in

Arkansas v. Sanders, comported with the strictures contained in

the Fourth Amendment. The judgment of the New York Court of

Appeals should therefore be reversed.

ARGUMENT

I

The search of the respondent's jacket was properly con-

ducted as a search incident to the respondent's lawful arrest.

A. The search of the respondent's jacket falls squarely

under the doctrine of search incident to arrest as

explained in Chimel vo. California.

It has been the contention of the Petitioner in this case, from

the initial suppression hearing through every stage of appellate

review, that the search conducted by New York State Trooper

Nicot of the respondent's jacket was permissible as incidental to

the latter's lawful arrest, and therefore not governed by the

warrant requirement of the Fourth Amendment.’ An evaluation

of that assertion must begin with reference to this Court's

seminal decision in Chimel v. California, 395 U.S. 752 (1969),

wherein the scope of searches incident to arrest first recognized

as lawful in Weeks v. United States, 232 U.S. 383 (1914), was

explained.

In Chimel, the analysis of the doctrine was described thusly:

“When an arrest is made, it is reasonable for the

arresting officer to search the person arrested in order to

remove any weapons that the latter might seek to use in

order to resist arrest or effect his escape. .. . In addition,

it is entirely reasonable for the arresting officer to search

for and seize any evidence on the arrestee’s person in

order to prevent its concealment or destruction. And the

area into which an arrestee might reach in order to grab

a weapon or evidentiary items must, of course, be

governed by a like rule. ... There is ample justification,

therefore, for a search of the arrestee’s person and the

area ‘within his immediate control’ — construing that

phrase to mean the area from within which he might gain

IThe respondent has conceded at every stage of this proceeding that both the

initial stop for speeding and the subsequent arrest for possession of

marijuana were lawful.

possession of a weapon or destructible evidence.” 395 U.S.

at 762, 763 (emphasis added).

Clearly, in the instant case, the search of the respondent’s

jacket was not a search of his person. The jacket was in a pile

with four other jackets in the back seat of the automobile. The

four occupants were placed under arrest but not secured in any

manner. All were standing immediately alongside the vehicle as

Trooper Nicot searched the jacket. The analysis of this case thus

may be further refined to the issue of whether the search by the

Trooper was of an area from which the four arrestees “might

reach in order to grab a weapon or evidentiary items.” Jd., at

763. Parenthetically, it hardly needs comment that, although the

cocaine was discovered in the respondent’s jacket, the relevant

inquiry is whether, at the time of the search, any or all of the

four arrestees had potential access to the jackets in the vehicle.

Although the guidance provided in Chimel is instructive in

determining the issue at bar, factually the two cases are

dissimilar. In Chimel, three police officers searched the entire

house of the defendant, from attic to garage, after placing him

under arrest, asserting that the authority for the search was the

arrest itself. In the present case, however, significant distinc-

tions exist. For example, rather than outnumbering the arrestee

as did the three policemen in Chimel, here there was only one

police officer with four arrested subjects, and the arrest took

place on a busy interstate highway. Furthermore, the officer

lacked the capability to secure or restrain his arrestees, having

only one set of handcuffs. Beyond that, the search occurred not in

a dwelling, but in an automobile, and “one’s expectation of

privacy in an automobile .. . (is) significantly different from the

traditional expectation of privacy and freedom in one’s

residence.” Rakas v. Illinois, 439 U.S. 128, 148 (1978; fn. 15);

United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976). And

finally, the search of the vehicle and the jacket inside it occurred

immediately after the arrest of the four for possession of

marijuana, and while the four were in close proximity to

Trooper Nicot and the car.

The latter factors just noted rise to critical importance when

considered in the context of another of this Court’s major

pronouncements relating to the search incident doctrine, United

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

agents, acting on probable cause to believe that a double-locked,

200-pound footlocker contained contraband, arrested its two

possessors, separated them from the footlocker, transported the

arrestees and the footlocker to the federal building, and con-

ducted a warrantless search of the locker one and one-half hours

after the arrests. The federal agents admitted that the locker

was under their exclusive control at the time of the search.

Ruling that the defendants were entitled to the protection of the

Fourth Amendment once the officers assumed exclusive control

of the footlocker, the Court suppressed the evidence derived from

the search. The decision appears quite clearly to have turned on

the fact that the search of the footlocker occurred some 90

minutes after the federal agents had gained exclusive control of

the same and long after the defendants were securely in custody.

Reiterating prior decisional law, it was stated that:

“(W)arrantless searches of luggage or other property

seized at the time of an arrest cannot be justified as

incident to that arrest either if the ‘search is remote in

time and place from the arrest,’ Preston v. United States,

376 US. at 367, ... or no exigency exists. Once law en-

forcement officers have reduced luggage or other personal

property not immediately associated with the person of

the arrestee to their exclusive control, and there is no

longer any danger that the arrestee might gain access to

the property to seize a weapon or destroy evidence, a

search of that property is no longer an incident of the

arrest.” 433 US. at 15.

Thus, Chadwick stands for the proposition that a search

cannot be sustained as incidental to an arrest if the property

10

being searched has been reduced to the exclusive control of the

police. However, Chadwick does not prohibit a search as incident

to arrest where the property in question has not come under the

exclusive control of the police. This is clearly the factual

situation presented in the instant case, with the jackets lying in

the open vehicle’s back seat. Furthermore, rather than being

“remote in time or place” to the arrest, the search of the jackets

was contemporaneous and coterminous with the arrest of the

four individuals. Chadwick’s holding is extremely instructive

when applied to the facts of this case, and provides persuasive

support for our position. Unlike the 200-pound footlocker in that

case, the Trooper herein seized a portable, black leather jacket.

Furthermore, unlike the 90-minute delay between arrest and

search in Chadwick, Trooper Nicot executed his search im-

mediately after the arrest. And, perhaps most importantly,

Trooper Nicot was faced with the uncertainties posed by four

unrestrained arrestees all in close proximity to him at the time

of the search, a far cry from the situation faced by the federal

agents in Chadwick, who had already placed the two defendants

there in secure custody at the time of their search. Perhaps the

dissent in the instant case in the New York Court of Appeals

described the situation best when it was characterized at the

time of the.search as “still fluid.” People v. Belton, 50 N.Y.2d 447

(1980; Gabrielli, J., dissenting). The Trooper could not readily

secure the vehicle with all of its contents, parked on an in-

terstate highway, and still transport his four arrestees to secure

detention. Trooper Nicot would certainly have been negligent to

have let his prisoners remove their possessions from the vehicle

without first searching those possessions for weapons or ad-

ditional contraband. Interpreting the search by Trooper Nicot in

the case at bar as violative of the Fourth Amendment would

certainly add irretrievably to making the criminal law “a trap

for the unwary policeman and distract from the important

activities of detecting criminal activity and protecting the public

a EE RRS =I »

11

safety.” United States v. Chadwick, supra, at 24 (Blackmun, J.,

dissenting).

This Court has repeatedly emphasized that whether a search

can be sustained as incidental to a lawful arrest depends upon

the factual situation in which the police and their arrestees find

themselves. For example, in Preston v. United States, 376 US.

364 (1964), cited with approval in Chadwick, a search of the

automobile in which three persons who were arrested for

vagrancy had been situated was invalidated where the search

occurred after the police drove the vehicle to their station and

then had it towed to a garage, after the arrestees were confined

in the police station. In holding the search not incidental to the

arrest, this Court’s opinion centered on the fact that the search

was “remote in time or place from the arrest.” 376 U:S. at 367.

Again, in Dyke v. Taylor Implement Co., 391 U.S. 216 (1967),

this Court struck down a search, purportedly incidental to a

lawful arrest, where the car being driven by an arrestee was

searched while it was parked outside the jail in which the

arrestee was already incarcerated. Citing Preston’s holding that

a search conducted “remote in aime or place” from an arrest is

not an incident of the arrest, the fruits of the search conducted in

Dyke were suppressed.

Unlike the factual patterns presented in Preston and Dyke, or

even in Chadwick, the search conducted by Trooper Nicot clearly

was neither remote in time nor place from the arrest. The vehicle

and its contents cannot be considered to have been reduced to the

exclusive control of the Trooper. The occupants of the vehicle,

while under arrest, were not secured; they were all standing

around the car, and the jackets in the back seat were certainly

within their immediate area. As compared with the clear lack of

access to the seized items by the arrestees in Chadwick, Preston

or Dyke, the arrestees in the instant case certainly had potentia!

access to the property in question, i.e., the jacket on the back

seat.

—— ao

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12

The facts adduced at the suppression hearing show that

Trooper Nicot stationed all four arrestees around their car as he

frisked them following the initial detainment. As he testified,

the four were “all in close proximity .. . around the car” (J.A. 19).

Thereafter, following his discovery of the marijuana in the car,

the four were brought together to be read their Miranda rights,

but were not secured in any fashion. Indeed, Trooper Nicot only

had the capacity to restrain one of the four, insofar as he only

possessed one set of handcuffs. No other police officers were at

the scene.

To assert that the contents of the automobile, including the

respondent's jacket, were reduced to the exclusive custody of the

Trooper merely because all four arrestees were standing outside

the car and had been advised they were under arrest borders on

the ludicrous. It would certainly have been a simple matter for

the four to overpower the officer, who had not drawn his service

revolver, or to rush him to grab whatever they desired from the

recesses of the car. Under the facts of this case, any of the

arrestees, either acting alone or in concert, could easily have

reached into the car to grab a weapon or, for that matter, to grab

the cocaine and scatter it to the wind, thus destroying the only

tangible evidence of the crime then existing in the car.‘

At the time Trooper Nicot began his search of the car, there

was no overt indication that any weapons were secreted in the

car, although it was certainly plausible that contraband in the

form of drugs was located therein. However, Trooper Nicot

4Entirely apart from the above, one must consider whether the con-

stitutionality of the instant search should really even turn on the chance

circumstance that, at the time of the stop, the respondent’s jacket was beside

him on the back seat rather than worn. Had the jacket been worn by the

respondent at the time of a search, there is no question but that a search of

its pockets would have been permissible under United States v. Robinson,

414 US. 218 (1973), discussed infra. Should the mere happenstance that the

respondent may have removed the jacket moments earlier and set it beside

him alter the constitutional picture so markedly?

13

having had a lawful basis to search the car (as incident to arrest),

the question of the likelihood of illicit substances being found

therein became irrelevant. “The authority to search the person

incident to a lawful custodial arrest, while based upon the need

to disarm and to discover evidence, does not depend on what a

court may later decide was the probability in a particular arrest

situation that weapons or evidence would in fact be found upon

the person of the suspect. A custodial arrest of a suspect based on

probable cause is a reasonable intrusion under the Fourth

Amendment; that intrusion being lawful, a search incident to

the arrest requires no additional justification.” United States v.

Robinson, 414 U.S. 218, 235 (1973). While the issue in Robinson

was confined to a search of the defendant’s person, under the

reasoning of Chimel and Chadwick the same conclusion must, a

fortiori, obtain concerning searches of the “grabbable area” of an

arrestee. “Such searches may be conducted without a warrant,

and they may also be made whether or not there is probable

cause to believe that the person arrested may have a weapon or

is about to destroy evidence. The potential dangers lurking in all

custodial arrests make warrantless searches of items within the

‘immediate control’ area reasonable without requiring the

arresting officer to calculate the probability that weapons or

destructible evidence may be involved. United States v. Chad-

wick, supra, at 14, 15. Thus, the same concerns espoused by this

Court in Robinson in approving searches of the person incident

to arrest, (i.e., “the need to disarm and to discover evidence,”

ibid.) are also the same concerns espoused by this Court in

Chimel and Chadwick, supra.5

The same conclusion obtains with even greater force when the

particular area to be searched incident to arrest involves a

IThis point also effectively negates respondent’s contention, advanced in his

brief in opposition to the petition for writ of certiorari in this case, that

since there was no finding made that Trooper Nicot was in danger, we are

now precluded from relying on the possibility of danger to the officer as a

circumstance justifying the search.

vehicle and its contents. This Court has specifically refused to

draw the conclusion that persons arrested for traffic offenses are

less likely to possess dangerous weapons than are those arrested

for other crimes. See United States v. Robinson, supra, at 234.

“It is scarcely open to doubt that the danger to an officer is far

greater in the case of the extended exposure which follows the

taking of a suspect into custody and transporting him to the

police station than in the case of the relatively fleeting Terry-

type stop.” Id., at 234, 235. There is certainly a wealth of

statistical information available which supports this conclusion.

Unfortunately, to the statistics cited in footnote four to the

majority’s opinion in Robinson may be added the growing

number of assaults on police officers during traffic stops. The

latest figure in a series of yearly increases shows that 6,329

officers were assaulted in 1979 during the course of traffic stops

of vehicles. This figure represents an increase of over one

thousand such assaults in just three years. Beyond that, 82 police

officers were murdered during the course of routine traffic stops

during the five-year period between 1975 and 1979.6

While, with the exception of Arkansas v. Sanders, 442 U.S. 753

(1979), discussed infra, this Court has not heretofore written on

the subject of a warrantless search of effects taken from an

automobile lawfully stopped (as opposed to a search of some

integral part of the automobile itself; see Arkansas v. Sanders,

supra, at 763) numerous federal courts and state courts of last

resort have had the opportunity to apply this Court’s decisions to

cases posing similar questions as that at bar. The resulting

decisions of these courts have quite consistently produced

thoughtful and articulate interpretations of the search incident

to arrest doctrine in a manner consonant with our position

concerning the legality of the present search.

6Source: Crime in the United States, 1975-1979, Uniform Crime Reports of

the United States Department of Justice; Law Enforcement Officers Killed,

1975-1980, Uniform Crime Reports of the United States Department of

Justice.

A SS FE EE a — _—

15

A brief review of some of these cases is illustrative in

demonstrating the types of considerations properly employed by

the courts in determining whether a particular search was

incidental to an arrest. Where the situation is still “fluid,” and

the area or items searched have not been reduced to the exclusive

control of the police, as was the situation in the present case,

courts have sustained searches of automobiles and their contents

as properly incidental to the arrest. Examples of these decisions

include United States v. Fontecha, 576 F.2d 601 (5th Cir., 1978;

sustaining search of unlocked suitcase in back seat of car by one

officer confronted by two arrestees, one still in car at time of

search); United States v. Foster, 584 F.2d 997 (D.C. Cir., 1978;

sustaining search of grocery bag between two front seats while

four arrestees were located in and about car); United States v.

Wilkerson, 598 F.2d 621 (D.C. Cir., 1978; sustaining search of

coat on front seat of car by one of five officers as defendants

stood outside car and one remained inside); North Carolina v.

Hunter, 299 N.C. 29, 261 S.E. 2d 189 (1980; sustaining search of

front seat area of car while defendant standing outside open door

with hands on car’s roof); Banks v. Georgia, 246 Ga. 178, 269 S.E.

2d 450 (1980; sustaining search of shirt on car’s floor while

defendant leaning against car while car door open); Lowisiana v.

Wilkins, 364 So. 2d 934 (1978; sustaining search of floor of

taxicab while arrestee standing by car’s open door with hands on

roof). Other cases upholding searches under circumstances

similar to those noted above include United States v. Agostino,

608 F.2d 1035 (5th Cir., 1979); United States v. Ajlouny, 476 F.

Supp. 995 (E.D.N.Y., 1979); United States v. Ocampo, 492 F.

Supp. 1211 (E.D.N.Y., 1980).

In United States v. Fontecha, supra, the Fifth Circuit Court of

Appeals prudently observed that:

“At the time that (the police officer) stopped Fontecha’s

car, he had no way of knowing what dangers, if any, he

faced or what plans the two occupants of the car might

have had for disposing of evidence (footnote omitted). This

two-on-one confrontation involving an automobile on a

deserted road furnished sufficient exigent circumstances

— judged as of that time and not in light of subsequent

events — to justify an immediate search .. . .” 576 F.2d at

605.

Similarly, in United States v. Wilkerson, supra, the Court of

Appeals recognized precisely the point we are advancing in this

brief, when it noted:

“It takes little imagination to realize that an armed

suspect might hide his weapon in a car before getting out

in response to a police order. Thereafter standing next to

the car without handcuffs, either the driver or one of the

passengers could have bolted to it, seized a weapon and

fired before the officers could find cover.” 598 F.2d at 625.

By the same token, it takes little imagination to realize that a

suspect might well also secrete illicit, readily destructible drugs

in a car before exiting it in response to a police order. The basic

issue thus returns to an assessment as to whether the contents of

the automobile had been reduced to the complete and exclusive

control of the arresting officer, or whether the contents could

still be retrieved by one or more of the arrestees if they rushed

into the car.

In a number of other cases, courts have invalidated searches of

a car’s interior or contents, but in each such case a critical

element relating to the custody of the items searched was dif-

ferent. For example, searches of effects in a car, even if the

arrestees are nearby, have usually been struck down if, among

other factors, the arrestees have been handcuffed, thereby

reducing the property to the exclusive control of the police. See,

e.g., United States v. Neumann, 585 F.2d 355 (8th Cir., 1978);

United States v. Schleis, 582 F.2d 1166 (8th Cir., 1978); New

Jersey v. Welsh, 84 N.J. 346, 419 A.2d 1123 (1980). Still other

cases have invalidated searches purportedly incidental to arrest

when the item searched has been reduced to the exclusive control

of the police due to the fact that the arrestees have been im-

mobilized by a greater number of police. See, e.g., Rhode Island

v. Robalewski, 418 A.2d 817 (1980); Montana v. Cripps, 582 P.2d

312 (1978); Louisiana v. Blanchard, 374 So. 2d 1248 (1979). A

number of other decisions have ruled invalid searches conducted

so far removed in time or space from the arrest as to be clearly

not incidental to the arrest.

Each of the cases cited above involved the sifting together of a

variety of factors all relevant under the application of the search

incident to arrest doctrine. We feel confident in asserting that

any of these courts, utilizing the same analytical considerations

espoused in their own decisions, would have sustained the search

conducted in the instant case if presented with its factual

pattern. The fact that the New York Court of Appeals has

decided contrarily is an anomaly, an aberration in an otherwise

generally consistent approach by the various courts in the

nation. It is this anomaly that must be corrected by this Court.

In the respondent’s brief in opposition to the petition for a writ

of certiorari in this case, it is argued that we are asking this

Court to arrive at an inflexible formula whose variables would

include the number of defendants, the number of police officers,

and the number of sets of handcuffs. We are asking this Court to

do no such thing. We are submitting, however, that under the

standards enunciated in Chimel v. California, supra, and its

progeny, each case must be examined with an eye toward its own

particular facts, and among those facts are the number of

participants and the degree of restraint, if any, imposed upon

the arrestees. This same conclusion was articulately explained

by the Supreme Court of New Jersey in New Jersey v. Welsh,

“The relevant facts, then, appear to be those which

disclose what places the person under arrest presently

could reach at the time the arrest is undertaken and how

likely it is that he would attempt resistance or escape or

destruction of evidence. Important considerations are

whether the arrestee has been placed under some form of

restraint, the positions of defendant and the arresting

officer in relation to the vehicle, the difficulties to be

encountered in gaining access to the vehicle as to the

particular area therein searched, and the number of

officers present as compared with the number of persons

arrested or bystanders in the immediate vicinity.” 419 A.

2d at 1127.

Similarly, Professor LaFave, in his recent treatise on search

and seizure law, listed the criteria generally employed by the

nation’s courts in following this Court’s decision in Chimel and

its “immediate control” test as it relates to vehicles. The relevant

considerations cited by LaFave include (1) whether the arrestee

was placed in some form of restraints; (2) the location of the

arrestee vis-a-vis the automobile; (3) the ease or difficulty of the

arrestee’s gaining entry to the vehicle’s interior; and (4) the

number of officers present in relation to the number of arrestees.

2W. LaFave, Search and Seizure, §7.1 (b) (1978).

While this common-sense approach has been implicit through-

out this Court’s pronouncements on searches incident to arrest

in the past, a clear statement from this Court to the effect that

these are the types of factors courts must consider when

assessing the propriety of searches incident to arrest might well

serve to prevent, or at least minimize, the occasion of erroneous

interpretations of the law such as was rendered by the New York

Court of Appeals in this case.

Beyond that, however, the New York Court of Appeals’

opinion also distorts the clear meaning of the concept of “im-

mediate” or “exclusive” control, the point beyond which a search

conducted following an arrest is no longer incident to it.

Analyzing the opinion of the Court of Appeals on its face, it

becomes evident that, as Judge Gabrielli noted in dissent, the

majority considers that “since the suspects were standing

outside the car at the time of the search and had been told that

they were under arrest, both their persons and their property

‘19

had thereby been conclusively and safely reduced to the complete

control of the officer, as a matter of law.” People v. Belton,

supra, at 454, 455. Such a patently erroneous interpretation of

the basic doctrine of Chimel v. California should be clearly

repudiated.

Even a brief review of the circumstances facing the Trooper in

this case at the time he arrested his four subjects makes it amply

clear that he acted in an entirely appropriate fashion. Obviously,

all four arrestees had not been secured or immobilized, nor did

Trooper Nicot posses the capacity at that time and place to do so.

There were no other officers at the scene. The Trooper had the

right, and we submit, the duty as well, to make certain that his

safety was not threatened by the four men in his presence, and

that any evidence secreted in the car was not destroyed. To hold

to anything less under the facts of this case will have the effect of

requiring police officers such as Trooper Nicot to choose between

insuring that concerns of personal safety and preservation of

evidence are met, or risking the suppression of tangible,

probative evidence such as that recovered in the instant case.

“Surely, the Constitution does not require police officers to make

the unhappy choice between dereliction of duty and risk of

death ...(T)he Fourth Amendment's proscription against

unreasonable searches and seizures (does not) require of-

ficers ... to risk their lives needlessly in the performance of their

duty.” New York v. Earl, 431 U.S. 943 (1977; Burger, C.J.,

dissenting from cert. den.).

As noted earlier, the majority opinion in the New York Court

of Appeals seems to indicate that once a person is told he is

arrested and steps out of his automobile, everything inside that

vehicle has thereby been conclusively reduced to the exclusive

control of the arresting officer. As Judge Gabrielli noted in his

dissent from that conclusion, “one might well wish that all

criminal suspects could so readily be subdued as a matter of law,

(but) I cannot agree with a decision that requires a police officer

ET MR MRT eR ae ere Ot

20

to stake his very life upon the validity of such a questionable

presumption.” New York v. Belton, supra, at 455 (Gabrielli, J.,

dissenting).

In short, this is not a case such as those previously presented to

this Court in Preston, Dyke, Chimel or Chadwick, supra. In each

of those cases and others like them there was no possible way

that the particular arrestee involved could gain access to the

particular area searched. As such, the facts in the instant case

= are markedly different. We believe a considered approach to this

case must result in the clear and inescapable conclusion that the

subject property had simply not been reduced to the Trooper's

exclusive control. Any or all of the four arrestees could have

gained access to the jacket if they had chosen to do so. Ac-

cordingly, Trooper Nicot’s actions in searching the jacket should

be sustained, the fruits of the search should be declared ad-

missible, and the respondent's conviction should be reinstated.

B. The Decision of Arkansas v. Sanders Does Not Af‘ect

the Validity of the Instant Search

In the recent decision of Arkansas v. Sanders, 442 U.S. 753

(1979), this Court reiterated its pronouncement, in the context of

the warrant clause of the Fourth Amendment, that “a few

‘jealously and carefully drawn’ (footnote omitted) exceptions

provide for those cases where the societal costs of obtaining a

warrant, such as danger to law officers or the risk of loss or

destruction of evidence, outweigh the reasons for prior recourse

to a neutral magistrate (citation omitted; emphasis added).” Id.,

at 759. Ever since the release of the decision and opinion in

Sanders, the respondent has sought to place his case within its

parameters. In fact, the respondent would argue that Sanders is

a cloak for the suppression of any evidence found in the course of

a warrantless search of receptacles located in an automobile. In

doing so, he ignores the long-standing justification for certain

warrantless searches found in the doctrine of search incident to a

lawful arrest, to which this Court referred in the above

quotation. It will thus become clear, in the analysis below, that

21

Sanders is in reality clearly and easily distinguished from the

case at bar.

“(An apparently small difference in the factual situation fre-

quently is viewed as a controlling difference in determining

Fourth Amendment rights.” Id., at 757. This is true in the in-

stant case as well; certainly the facts and circumstances involved

in this matter are the key to the determination of the issue

presented.

In Sanders, members of the Little Rock, Arkansas Police

Department, acting on an informant’s tip, placed an airport

under surveillance for an individual who was to be carrying a

green suitcase containing marijuana. The police observed the

defendant pick up the suitcase from the baggage area, meet

another man there, hail a taxicab, place the suitcase into its

trunk, and depart in the taxi. The cab was stopped several blocks’

away by two police officers who had followed the defendant from

the airport, with the assistance of another patrol car. The police

then asked the cab driver to open the trunk. This having been

done, the police opened the suitcase on the spot, and the mari-

juana contained in it was discovered.

This Court held the search, having been conducted without a

warrant, to be invalid. In so holding, the Court expressly refused

to extend the “automobile exception” to the warrant require-

ment, first postulated in Carroll v. United States, 267 U.S. 132

(1925) and expounded upon in Chambers v. Maroney, 399 US. 42

(1970), to allow warrantless searches of personal luggage located

in an automobile, absent the existence of exigent circumstances.

“(A) suitcase taken from an automobile stopped on the highway

is not necessarily attended by any lesser expectation of privacy

than is associated with luggage taken from other locations.”

Arkansas v. Sanders, supra, at 764.

This Court expressly did not consider, however, in either the

majority or dissenting opinions, the question of whether the

search could have been upheld as one incident to a lawful arrest.

i

“(W)e (do not) consider the constitutionality of searches of

luggage incident to the arrest of its possessor... The

State has not argued that respondent’s suitcase was

searched incident to his arrest, and it appears that the

bag was not within his ‘immediate control’ at the time of

the search.” Id., at 763, 764 (fn.11). “Since respondent was

not formally arrested until after the suitcase was

searched, the State does not argue that the suitcase was

examined as part of a search incident to a custodial

arrest.” Id., at 769 (fn. 1; Blackmun, J., dissenting).

Beyond these clear statements themselves, other passages from

the opinion make it abundantly obvious that Sanders is simply

not a case invoking the search incident to arrest doctrine. For

example, there is no question but that the luggage seized by the

police was in their exclusive control at the time of the search.

“(T)he officers had seized the luggage and had it exclusively

within their control at the time of the search. Consequently,

‘there was not the slightest danger that (the luggage) or its

contents could have been removed before a valid search warrant

could be obtained.’ ” Id., at 762 (emphasis added).

Furthermore, this Court concluded its opinion by stating that

“(W)here — as in the present case — the police, without en-

dangering themselves or risking loss of the evidence, lawfully

have detained one suspected of criminal activity and secured his

suitcase, they should delay the search thereof until after judicial

approval has been obtained.” Id., at 766 (emphasis added). All of

the foregoing simply demonstrates that, while the government

did not argue that the search in Sanders was conducted incident

to an arrest, the facts would probably not have sustained the

search on that theory even if ‘he government has pressed that

argument, as the suitcase involved had been reduced to exclusive

police control prior to its search.

This is not to say, however, that a search that is properly con-

ducted as incident to arrest mzy not extend to a suitcase, such as

that searched in Sanders, or other receptacles deserving of an ex-

23

pectation of privacy. On the contrary, the language cited above

makes it quite clear that where the concerns justifying a search

incident to arrest (i.e., personal safety and preservation of

evidence) cannot be allayed prior to obtaining a warrant, then a

search of such effects is entirely proper and reasonable. In noting

that “special exigencies” may justify the warrantless search of a

suitcase, this Court observed that such exigencies generally will

depend “upon the probable contents of the luggage and the

suspect's access to those contents, not upon whether the luggage

is taken from an automobile.” Id., at 763, 764 (fn.11; emphasis

added). This language is then followed by the remark that the

State in Sanders conceded that there were no exigencies in that

case. The same certainly cannot be said of the instant case. We

submit that the record clearly demonstrates the existence of

exigent circumstances at the time of the search at bar, in that

the search was of an area ready to hand of the arrestees.

A brief contrasting of the facts existing in this case with those

present in Sanders underscores our point. In Sanders, there were

at least three police officers and the taxicab driver present with

the two defendants, unlike the four-on-one confrontation with

which Trooper Nicot was faced in the present matter. Further-

more, while the defendants in Sanders apparently were neutral-

ized by the greater number of police the four arrestees at bar

were neither handcuffed nor secured in any other fasion. The

police in Sanders knew in advance, on a tip from a reliable in-

formant, that the particular suitcase involved contained contra-

band. Beyond that, the suitcase was locked in the taxicab’s

trunk, to which presumably only the cab driver had the key. In

the instant case, Trooper Nicot had no knowledge of what was

present in any area of the stopped automobile. In addition, the

car was unlocked with the jackets in question lying in the center

of the back seat. (Although it is not clear from the record, it

seems quite likely that the vehicle’s doors were open at the time).

Finally, unlike Sanders, the four defendants in the instant

matter had unequivocally been placed under arrest prior to the

24

search. In short, the circumstances surrounding the search in the

instant case which justify it as incident to arrest simply did not

correspondingly exist at the time of the search invalidated in

Sanders.

From all of the foregoing it is clear that, notwithstanding the

result in Arkansas v. Sanders, a search of luggage or other

personal effects carrying an expectation of privacy may legally

and constitutionally be conducted if incidental] to a lawful arrest

and the article has not been reduced to the exclusive control of

the officer. Thus, all of the respondent’s exhortations in the

instant case, that the search of his jacket was unconstitutional

because his expectation of privacy in it required a warrant, are

misplaced as the jacket had not been removed from the ambit of

potential access by the respondent or his fellow passengers.”

The same conclusion, that a warrantless search of an article

(even one otherwise deserving of an expectation of privacy sig-

nificant enough to compel a warrant under normal circum-

stances) will be sustained upon a showing of necessity therefor or

exigent circumstances, can be drawn from this Court’s opinion in

United States v. Chadwick, 433 U.S. 1 (1977). As was there noted,

“(Wnth the footlocker safely immobilized, it was unreasonable to

7In any event, the respondent’s claims relating to his purported right to

privacy in the jacket are misplaced for another reason as well. While “the

very purpose of a suitcase is to serve as a repository for personal items when

one wishes to transport them,” Arkansas v. Sanders, supra, at 764, a jacket

carries no similar purpose. As this Court has noted, “not all containers and

packages found by police during the course of a search will deserve the full

protection of the Fourth Amendment.” /d., at 764, 765 (fn. 13). Obviously, a

jacket is essentially utilized to shield one from the elements. Any use of it as

storage for personal items must be regarded as merely incidental to its main

function. Thus, while a particular item searched “may be used as a

repository of personal effects, the mere possibility of such use does not lead

to the conclusion that such containers are inevitably associated with an

expectation of privacy for purposes of determining whether a warrantless

search thereof violates the Fourth Amendment.” United States v. Goshern,

628 F.2d 697 (1st Cir., 1980).

25

undertake the additional and greater intrusion of a search with-

out a warrant.” Id., at 13 (emphasis added). “There being no

exwency, it was unreasonable for the Government to conduct

this search without the safeguards a judicial warrant provides.”

Id., at 11 (emphasis added).

Clearly, again, the issue of the reduction of the searched

property to exclusive police control at the time of the search is

the key to the determination of the validity of the search. We

submit that, for all of the reasons discussed in this brief demon-

strating why the subject jacket was not in the exclusive control

of Trooper Nicot at the time he searched it, the search was thus

lawful as incident to the respondent’s arrest. The search was

properly undertaken to insure the personal safety of the Trooper

and the preservation of any readily destructible evidence. That

being the case, the rule of Arkansas v. Sanders, relied upon by

the respondent, is simply not relevant to this case.

26

CONCLUSION

The judgment of the New York Court of Appeals granting the

respondent’s motion to suppress and dismissing the indictment

(J.A. 75) should be reversed.

Respectfully submitted,

JAMES R. HARVEY

District Attorney,

Ontario County, New York

Counsel of Record

Ontario County Courthouse

Main Street

Canandaigua, New York 14424

(716) 394-5220

R. MICHAEL TANTILLO

Assistant District Attorney

on the brief

TIMOTHY J. BUCKLEY

Assistant District Attorney

on the brief

March 4, 1981