Respondents Brief — Johnson v. United States

No. 80-328 ALEXANDER L. STEVAS

ena

IN THE icoet

Supreme Court of the Gnited States

OCTOBER TERM, 1980

ee

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

ROGER BELTON,

Respondent.

——— ee

ON WRIT OF CERTIORARI TO

THE NEW YORK STATE COURT OF APPEALS

BRIEF FOR RESPONDENT

PAUL J. CAMBRIA, JR.

LIPSITZ, GREEN, FAHRINGER,

ROLL, SCHULLER & JAMES

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

Attorney for Respondent

Of Counsel:

BARBARA DAVIES EBERL

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

ieiiaiemanenneianiaial

Washington, 0.C. © CLB PUBLISHERS’ © LAW PRINTING CO @ (202) 393 0625

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-328

THE PEOPLE OF TBE stArE OF NEW YORK,

Petitioner,

ROGER BELTON,

Respondent.

ON WRIT OF CERTIORARI TO

THE NEW YORK STATE COURT OF APPEALS

BRIEF FOR RESPONDENT

QUESTION PRESENTED

Whether the warrantless search of respondent’s zippered

jacket in the absence of exigent circumstances, while it was

within the exclusive control of the police (and outside of

respondent’s reach) and the seizure of contraband from its

zippered recesses violates the Fourth Amendment.

Wi

(ii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

pe OR Be gy ers

PRR ETE GA. PORE GPR oie Sic cece eadecccnvbes l

The Decision of the Appellate Division................ 4

New York Court of Appeals Decision ................. 5

SUMMARY OF ARGUMENT.................. rea bik 6

PEE & carer e CC OR ss CLK ENO Hone be ha 8o kee wdn 10

I. THE WARRANTLESS SEARCH OF

RESPONDENT’S ZIPPERED JACKET

IN THE ABSENCE OF EXIGENT CIR-

CUMSTANCES, WHILE IT WAS WITH-

IN THE EXCLUSIVE CONTROL OF

THE POLICE (AND OUTSIDE THE

RESPONDENT’S REACH) AND THE

SEIZURE OF CONTRABAND FROM

ITS ZIPPERED RECESSES VIOLATES

THE FOURTH AMENDMENT AS COR-

RECTLY HELD BY THE NEW YORK

COURT OF APPEALS WHICH SUP-

PRESSED THE EVIDENCE AND DIS-

MISSED THE INDICTMENT ................. 10

CLP IE, UD REE PUIETIIIE Ch iclactswkadslacccccctevave 24

ARGUMENTS OF THE GOVERNMENT ............ 27

(iii)

TABLE OF AUTHORITIES

Page

Cases:

Arkansas v. Sanders,

OR Si. THM EEO TOD a Coches dc Crcicccendvawbans 7, 10, 33

Banks v. State,

246 Ga. 178, 269 S.E.2d 450 (1980)............... 26

Chambers v. Maroney,

FP Es ETE ic ob hc cub eoilnchcuacsdectanuen 26

Chimel v. California,

ee We REED oividvnv none oer nccreds te hag Be oe

Coolidge v. New Hampshire,

Se Rh Oe MRED ss v0 bo 1 bbe Kawonbineewnun 17, 23

Cooper v. Marin,

49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d

168 (1979), cert. denied sub nom. Lombard vy.

Cooper; 100 SLX. 2965 (19BO) i. cick cccscccccnces 31

Draper v. United States,

Pa Sea BE TRMOOE veered ccvcdennsebetacccueeias 15

Lego v. Twomey,

eat ET AEP TEN > i 9 6'0.'s0s ckkbSeaenee eee 31

Payton v. New York,

Se Re ee EEO veckonnshvidhebecschieuawabues 28

People v. Belton,

50 N.Y.2d 447, 407 N.E.2d 420, 429 N.Y.S.2d

ED COV 0'bin's doden meen ctbhet Selatousvox bees a8, 23

People v. DeSantis,

46 N.Y.2d 82, 412 N.Y.S.2d 838 (1978)............. 5

People v. Robbins,

103 Cal.App.3d 34, 162 Cal. Rptr. 780 (1980),

cert. granted, 49 U.S.L.W. 3515 (U.S. Jan. 19,

(iv)

People v. Weintraub,

35 N.Y.2d 351, 320 N.E.2d 636, 361 N.Y.S.2d

oo 0 rine rrrrrTrrer re). Crit tre tT 31

State v. Blanchard,

374 So.26 1248 (La. 1978) ....vcecsccrecscescesess 27

State v. Cripps,

SE2 P.2d 312 (Mont. 19TE) ....ccccscvccicvvesccces 27

State v. Hunter,

261 B.B.20 TED (N.C, 19GD)...rceccccnccsecccceces 26

State v. Robalewski,

7. B 88 oy es RM Serer re erry ree 27

State v. Wilkens,

S56 Be ae OSS Cie, ISTE) 2 on ccccvelesccsccccecccwss 26

United States v. Agostino,

GOS F.2d 1635 (Sr Cis. 1979)... cccccvccsevvccous 25

United States v. Ajlouny,

476 F.Supp. 995 (E.D.N.Y. 1979)......... cece eens 25

United States v. Benson,

631 F.2d 1336 (8th Cir. 1980), petition for cert.

filed, 49 U.S.L.W. 3573 (U.S. Feb. 4, 1981)

SU PRE DD Miaka '5 cbs che dnc cescnececesascvesaens 19

United States v. Chadwick,

Be PENT) vo vcaesccavccnseusas 4, 7, 10, 17, 33

United States v. Dixon,

558 F.2d 919 (9th Cir. 1977), cert. denied, 1063

SEP UREKSANA NAc bhasOUeR ic cecccrrecsepecheavdiesenes 29

United States v. Fontecha,

576 F.2d 601 (Sth Cir. 1978) ....cccccccvccscciecns 24

United States v. Foster,

584 F.2d 997 (D.C. Cir.), cert. denied, 439 U.S.

SE CE iin cha ke na ke bane vanes ated Reade ee kee 24

United States v. Garcia,

605 F.2d 349 (7th Cir. 1979), cert. denied, 446

SEs ME hak codecs csnctadaveastpeben tweens 29

(v)

United States v. Goshorn,

ae ame OT OMe GM, ADOD) icc icccccceccccccccs 26

United States v. Graham,

28 Crim. L. Rptr. 2528 (7th Cir. Jan. 27, 1981)..... 29

United States v. Miller,

608 F.2d 1089 (5th Cir. 1979), cert. denied, 100

ED CE Do Sooke a cab iwA bb beds ebee cae 21

United States v. Montano,

PR re WIRE UE, BPOOD kc cc cecccccccricccncce 21

United States v. Ocampo,

492 F.Supp. 1211 (E.D.N.Y. 1960);........ccccccce 25

United States v. Rabinowitz,

Ts ee 14

United States v. Rigales,

a ue I Ps BOO) ccc cccciccccsccncneee 20

United States v. Robinson,

Pe PU REET OR Gi disccctccccceccct 8, 9, 14, 27, 31

United States v. Ross,

27 Crim. L. Rptr. 2169 (D.C. Cir. Apr. 17, 1980)... 21

United States v. Schleis,

De ee PR AON GAP, BOTB). oc ccvcccccccsecnce 19

United States v. Stevie,

582 F.2d 1175 (8th Cir. 1978), cert. denied, 443

et Te ed 19

United States v. Wilkerson,

ee ramen We CEP, MLM, TOR, cc cccvabsvccvecess 24

Constitutional Provisions:

I ee ia Pt al a i ition 0 6, 16

STATEMENT OF THE CASE

On April 9, 1978, respondent Roger Belton and three

companions, all of whom were from Buffalo, were travelling

west in a blue Chrysler automobile on the New York State

Thruway in the area within the jurisdiction of the Town of

Phelps (A-13, A-17). New York State Trooper, Douglas

Nicot, in an unmarked patrol car, was also travelling west-

bound in the passing lane (A-13, A-14). When he observed

the Chrysler gaining speed on his vehicle, he pulled over to

the right hand lane (A-13, A-31). After the blue auto moved

in front of the unmarked patrol car, the trooper estimated that

it was travelling at approximately 75 miles per hour in a 55

mile per hour zone (A-13, A-31). Trooper Nicot motioned

the private vehicle over to the shoulder of the road, to arrest

the driver for a speeding violation (A-14, A-42). The driver

rolled down his window and complied with the trooper’s

request for his license and registration (A-14, A-1 7, A-32),

Upon examining the registration, the trooper discovered that

the car was not owned by any of the four individuals but was

registered to an unrelated woman in Buffalo, and he later

discovered that the license produced by the driver was not

his own (A-18, A-32). Appellant was seated in the rear seat

behind the driver (A-18).

At the subsequent suppression hearing held in Ontario

County (New York) Court, the officer testified that he

smelled the odor of burning marijuana emanating from inside

the stopped automobile (A-14). There was no evidence of

any marijuana cigarettes in plain view (A-38). Nevertheless,

the trooper concluded that the individuals were unlawfully in

possession of marijuana, placed them under arrest and

commanded them to exit from the car (A-18). As the four

men got out of the vehicle, the officer placed them a distance

2

apart from each other and conducted a pat-down search for

weapons, which proved negative (A-19, A-33, A-35).

Trooper Nicot testified that there was no reason to draw his

service revolver and accordingly never did so at any time (A-

32, A-33). The trooper then entered the car and conducted a

further search, discovering on the floor in the front seat of the

auto a manilla envelope stamped “‘Supergold” (A-19, A-

20). The officer looked inside the envelope and saw a minute

quantity of marijuana residue (A-20, A-36). A search of the

rest of the auto’s interior failed to turn up any evidence of

burning marijuana; however, some butted cigarettes were

found (A-44).

Trooper Nicot then formally apprised the defendants of

their arrest, read them their Miranda rights, and again

search each of them, this time thoroughly, for further

evidence (A-20, A-21, A-36, A-40). After this was

completed, Trooper Nicot then re-entered the parked vehicle

(a two-door model) and conducted a further intensive search

of not only its contents, but as well a particular item of

personal clothing found on the back seat (A-21, A-41).

Lying in the middle of the back seat was a black leather

jacket with four or six,pockets (A-21, A-41). None of the

defendants was within any reach of the jacket since they were

all outside of the car and under arrest, nor was there any

indication that this personal item of clothing contained a

concealed weapon (A-48). Indeed, the trooper testified that

he first patted it down, thus assuring himself that it contained

no dangerous instrument hidden inside (A-42). Officer

Nicot then picked the jacket up with one hand and thereby

reduced it to his exclusive possession and control. He

immediately unzipped and/or opened all of the pockets and

while searching, discovered in one of the recesses two

marijuana cigarettes (A-22, A-48, A-49). In another

3

zippered pocket, Trooper Nicot discovered a twenty dollar

bill and upon unfolding the currency, saw a small quantity of

white powder (A-21, A-41, A-49). The warrantless

examination of the jacket also yielded a plastic bag contain-

ing white powder, and the personal medical insurance card of

respondent (A-21, A-22, A-49). None of these items was

visible until Nicot opened the pockets.

Based upon these findings, the trooper then further

arrested all four defendants for illegal possession of sus-

pected cocaine. Throughout this entire illegal search and

seizure, the defendants were separated and outside of the

two-door vehicle, unarmed and within the control and

custody of an armed and trained New York State Trooper

(A-32, A-33, A-48). The trooper radioed to his nearby

barracks at Junius Ponds, New York, and requested that a

magistrate be made immediately available for the arraign-

ment of the four individuals on charges of unlawful posses-

sion of marijuana and illegal possession of a controlled

substance (A-50, A-51). At no time was there a claim by

Trooper Nicot nor other evidence that his own personal

safety was in jeopardy, or that the defendants had been

anything other than fully cooperative, or that they were in a

position to deprive him of the exclusive custody and posses-

sion of the jacket which he had assumed by taking it into his

hands (A-32, A-33).

The four defendants and the jacket were swiftly trans-

ported to the Town of Phelps court and brought before the

Honorable Paul W. Adams (A-51). Respondent was

presented with an information charging him with unlawful

possession of marijuana in violation of Penal Law § 221.05

(A-51, A-52).!

‘Without the benefit of counsel, but after being informed that a fine

would be imposed, a plea of guilty was entered to the marijuana offense

(A-54).

4

-

Evidence on the cocaine charge, including the testimony

of Trooper Nicot, was presented to the Ontario County

grand jury (A-30). As a result, respondent was indicted on

May 24, 1978 for criminal possession of a controlled

substance in the fifth degree (A-3). The court denied

respondent’s motion to Suppress the cocaine seized during

the illegal search, and he subsequently pleaded guilty to

attempted criminal possession of a controlled substance in

the sixth degree (A-1, A-67). The court granted the defense

motion for bail pending the determination of the appeal to the

Appellate Division, Fourth Judicial Department of the

Supreme Court of the State of New York (A-1, A-2, A-60).

The Decision of the Appellate Division

On May 22, 1979, the Appellate Division affirmed Roger

Belton’s conviction (A-69). Contrary to respondent’s con-

tention that none of the classical exceptions to the warrant

requirement was applicable, the court nevertheless held that

the search of the jacket found in the back seat of the

automobile, outside the reach of all of the arrestees ““was

justified as a search incident to arrest... .” (A-72). In

reaching this decision, the Fourth Department overlooked

the facts established at the hearing which clearly indicated

that the jacket was not “‘ready to hand” such that respondent

or his confederates could reach it to seize 2 weapon or

destroy evidence, and that following the arrest of the four

individuals by an armed trooper, the jacket was in the arrest-

ing officer’s exclusive control, to wit, in his hands.

The Appellate Division also failed to follow United States

v. Chadwick, 433 U.S. 1 (1977), and instead focused its

attention on the inapplicable New York search-incident-to-

5

arrest case of People v. DeSantis, 46 N.Y.2d 82, 412

N.Y.S.2d 838 (1978), which involved the search of a

briefcase taken from the hands of a defendant at the time of

his arrest.

New York Court of Appeals Decision

Respondent’s application for permission to appeal to New

York’s highest court was granted on June 27, 1979 (A-74).

The conviction was reversed, the motion to suppress

granted, and the indictment dismissed on June 5, 1980 when

the Court of Appeals held that “[a] warrantless search of the

zippered pockets of an unaccessible jacket may not be

upheld as a search incident to a lawful arrest where there is

no longer any danger that the arrestee or a confederate might

gain access to the article” (A-77). Relying upon the record

made in the trial court, the Court of Appeals rejected the

justification of search incident to arrest, noting that “lojnce

defendant had been removed from the automobile and

placed under arrest, a search of the interiors of a private

receptacle safely within the exclusive custody and control of

the police may not be upheld as incident to his arrest (United

States v. Chadwick, 433 U.S. 1, supra; Arkansas y.

Sanders, 442 U.S. 753, supra)” (A-80, A-81). In answer to

the claims of the dissenting judges below and petitioner that

at the time of arrest the arrestees could reach the jacket. the

Court of Appeals emphasized that “‘the facts, as found at the

suppression hearing and affirmed by the Appellate Division,

were to the effect that the jacket was searched after the

defendant was removed from the vehicle and then placed

under arrest” (A-81, n.2).

Petitioner’s writ of certiorari to the New York Court of

Appeals was granted on January 19, 1981.

SUMMARY OF ARGUMENT

The proof at the suppression hearing established that a

black leather jacket with zippered pockets was lying in the

middle of the back seat of a two-door automobile, all the

occupants of which (one of whom was respondent) had been

arrested for marijuana possession, patted down by the

arresting officer, and placed in the custody of this armed

New York State Trooper who had more than twelve years

police experience. The evidence was that from the time of

their arrest, all of the defendants, each of whom was

thoroughly searched, were standing outside of the stopped

vehicle such that none of them could actually reach the

jacket which was inside the car and thus outside of their

immedia:e or instant control.

With the situation well in hand, the trooper went inside the

car and physically took possession of the jacket by grasping

it. A pat-down of the exterior of the jacket assured the officer

that no weapon was concealed anywhere inside the recesses

of this repository of personal articles. Nevertheless, in the

absence of a warrant, the trooper unzipped the pockets of the

jacket and uncovered a quantity of a substance which was

revealed to be cocaine, wrapped in a twenty dollar bill.

This warrantless search of respondent’s zippered jacket,

in which he had an expectation of privacy, in the absence of

exigent circumstances, while it was within the exclusive

control of the police officer such that it could not be reached

by any of the arrestees, and the seizure of contraband from its

closed recesses violates the Fourth Amendment. Th2 New

York Court of Appeals, in reversing the judgment of convic-

tion for criminal possession of a controlled substance and

granting the motion to suppress, correctly held that the

7

warrantless search of the zippered pockets of the unacces-

sible jacket was not a search incident to a lawful arrest

because it went outside of the boundaries established by this

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

Moreover, the State failed to its burden of establishing

thegggacondent and his companions could reach the jacket to

seize a weapon or destroy contraband and-thus establish the

_” ‘Svasekincident to arrest exception to the warrant require-

ment.

Furthermore, the New York Court of Appeals’ proper

ruling relied upon this Court’s decisions in Arkansas vy.

Sanders, 442 U.S. 753 (1979); United States v. Chadwick,

433 U.S. 1 (1977); and Chimel, supra, Wittetmemeels|lished

that an arrestee’s expectations of privacy in a receptacle

outside of his immediate control are not vitiated merely by-———

his arrest. Accordingly, the court below held that “lojnce

defendant had been removed from the automobile and

placed under arrest, a search of the interiors of a private

receptacle safely within the exclusive custody and control of

the police may not be upheld as incident to his arrest .. .” (50

N.Y.2d at 452, 429 N.Y.S.2d at 577).

Petitioner urges that the actions of the police officer in

searching the pockets of the jacket, even though they failed to

establish that any of the arrestees could reach the garment,

the pockets of which are commonly regarded as repositories

of personal items, were justifiable as a search incident to

arrest. There exists nothing on this record to indicate that the

officer was in physical jeopardy nor that the evidence was in

danger of being destroyed. In fact, not only did the trooper

testify that there was no reason to draw his service revolver,

his pat-down search of the jacket did not reveal a weapon-

like object. Thus, in the absence of an articulable danger to

the officer’s safety or the integrity of the evidence, the

8

warrantless intrusion—which went beyond the traditional

boundaries of a Chimel search incident to arrest—is wholly

unjustified. Since the arrestees were in the armed officer’s

custody and outside of the reach of the jacket, which was in

the officer’s exclusive control, the New York Court of

Appeals correctly applied the rules forged by this Court in

Chimel, Chadwick, and Sanders to invalidate the warrant-

less search and seizure.

The United States maintains that the present search can

be upheld even though it clearly went beyond that authorized

as a legal search incident to arrest and is governed by this

Court’s decisions which prohibit searches of containers in

which the arrestee has a reasonable expectation of privacy

when the container is within the exclusive control of the

arresting officer. Taking a position which would thoroughly

undermine the holding in Chimel, Chadwick, and Sanders,

in an attempt to return to the days when United States v.

Rabinowitz, 339 U.S. 56 (1950), controlled, the Govern-

ment argues that this search is permissible as part of the

“arrest process” based upon some overlybroad finding that

the container was in the “potential” reach of the arrestee,

even if it was outside of his actual reach. Such a rule would

make warrantless searches the rule rather than the exception.

The facts are uncontroverted that the arrest in this case was

complete and the arrestees were in the custody and control of

an armed trooper, who indeed, viewed the situation as so

secure and neutralized that there was no reason for him to

even draw his service revolver. Thus, even if the Govern-

ment’s untenable analysis was applied to the circumstances

of this case, the search of the jacket pockets could not be

upheld. More importantly, however, by arguing for the

adoption of such a rule, the Government urges that all

warrantless searches—even of private containers outside the

9

arrestee’s immediate control—are justifiable as intrusions no

more significant than those which attend the search of the

person incident to arrest (United States v. Robinson, 414

U.S. 218 [1973]). The sanctioning of such a rule would

render meaningless the holdings of Chimel, Chadwick, and

Sanders which are correctly applied to the facts of this case.

Respondent and his companions were outside of the

vehicle, arrested and in the custody of an armed state trooper

who personally viewed the situation as nonexigent as

demonstrated by his actions and statements; the jacket was

outside of the defendants’ immediate control and exclusively

in that of the officer’s from the time of the initial arrest. Thus,

notwithstanding the valid arrest and search of his person,

respondent nevertheless maintained a privacy interest in the

zippered pockets of his jacket such that the warrantless entry

into its closed recesses violated his Fourth Amendment

rights as construed by this Court in Chimel, Chadwick, and

Sanders. 5

ARGUMENT

THE WARRANTLESS SEARCH OF

RESPONDENT’S ZIPPERED JACKET IN

THE ABSENCE OF EXIGENT CIRCUM-

STANCES, WHILE IT WAS WITHIN THE

EXCLUSIVE CONTROL OF THE POLICE

(AND OUTSIDE OF RESPONDENT’S

REACH) AND THE SEIZURE OF

CONTRABAND FROM ITS ZIPPERED

RECESSES VIOLATES THE FOURTH

AMENDMENT, AS CORRECTLY HELD

BY THE NEW YORK COURT OF APPEALS

WHICH SUPPRESSED THE EVIDENCE

AND DISMISSED THE INDICTMENT.

Since this Court’s decision in Arkansas v. Sanders, 442

U.S. 753 (1979), many appellate tribunals have had occa-

sion to consider whether warrantless searches of various

types of “‘containers”’ and the seizures of items therefrom

were violative of defendants’ Fourth Amendment rights. In

each instance, the inquiry necessarily focused upon (1)

whether the’ arresting officer had reduced the container or

receptacle to his exclusive control such that there was no

danger that the arrestee or a confederate could reach the

container to seize a weapon or destroy contraband; and (2)

whether the arrestee could legitimately expect the contents

of the receptacle to remain private and undisclosed to public

view. In accordance with the principles enunciated in United

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

supra, the New York Court of Appeals correctly held that:

‘A warrantless search of the zippered pockets of an

unaccessible jacket may not be upheld as a search

11

incident to a lawful arrest where there is no danger that

the arrestee or a confederate might gain access to the

article.

* * *

“That defendant retained an expectation of privacy in

the contents of his jacket pockets notwithstanding the

fact of his arrest is beyond dispute. Indeed, it is difficult

to imagine a more private receptacle where one might

place one’s most personal items than the zippered

recesses of a jacket. . . . Once defendant had been

removed from the automobile and placed under arrest,

a search of the interiors of a private receptacle safely

within the exclusive custody and control of the police

may not be upheld as incident to his arrest {citing

Chadwick and Sanders]. The car was in a secure place

where it could have been easily guarded, its occupants

under arrest and safely away from the vehicle, their

removal to the police station imminent. There was,

therefore, no reason why the search should not have

awaited the issuance of a warrant” (People v. Belton,

SO N.Y.2d 447, 449, 452, 429 N.Y.S.2d 574, 575-577

[1980]; emphasis supplied).

A brief review of Sanders and Chadwick confirms that

New York’s highest court was correct in ruling that the

search of respondent’s jacket—which was in the exclusive

control of the trooper? who had already assured himself that

it contained no weapons or other dangerous _instru-

mentality—and the seizure of material from its closed

recesses, in the absence of a warrant, was violative of

respondent’s constitutional rights.

———

*Since the jacket was in the trooper’s exclusive control at all times

following the arrest, it was necessarily outside of the immediate control

of the arrestees; Sased on the testimony here, one is the converse of the

other. Thus, there was no exigency mandating immediate search of the

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

12

The New York Court of Appeals further correctly declined

to treat the search as one incident to arrest since the intrusion

went far beyond the narrow limits established by this Court

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

the State never met its burden of proving facts which would

support such an exception to the warrant requirement (A-81,

n.2). The Court of Appeals authoritatively construed the

decisions of this Court and its own prior rulings and held as a

matter of law that the District Attorney simply failed to

demonstrate that the jacket was within the area of immediate

control of any of the arrestees. Thus, upon these facts, the

court below properly ruled that the search was not one

incident to arrest.

The record established that from the time of the arrest, the

jacket was in the exclusive control of the officer and therefore

outside of the reach of respondent and his companions. Any

argument advanced by the State based upon a claim of

danger to the arresting officer in this case is wholly without

merit for the officer’s own testimony reveals that he did not

treat the situation as exigent. Not only is the record barren of

facts necessary to find a basis for a legal search incident to

arrest—the jacket being entirely outside of the area of control

of the arrestees while at the same time in the control of

Trooper Nicot—the officer was so secure and unthreatened

that he never felt the need to even draw his service revolver

(A-32, A-33). Thus, the State’s contention that the warrant-

less search was justifiable to protect the officer under the

exception of a search incident to arrest cannot withstand

even the mildest scrutiny because it is wholly unsupported

by the record.

Respondent agrees with petitioner’s analysis only to the

extent that “‘each case must be examined with an eye toward

its own particular facts . . .” (Petitioner’s Brief at 17).

13

However, petitioner’s proposed new rule, to supplement

those already existing in Chimel, Chadwick, and Sanders,

which would set forth specifically the extent of permissible

search based upon “the number of participants and the

degree of restraint, if any, imposed upon the arrestees”’

(Petitioner’s Brief, supra), is unworkablé. No such rigid rule,

designed apparently simply to make it easier for the police to

seize evidence at the expense of constitutional safeguards, is

possible because there are incalculable variables which

attend every arrest, search and seizure. The guidelines

previously forged by this Court, however, are more than

adequate to preserve the officer’s safety and the arrestee’s

freedom from intrusive warrantless searches and seizures

and should not be scrapped or emasculated simply to bypass,

the procedures necessary to lawfully acquire evidence.?

Nor can serious consideration be given to the recom-

mendation of the Government (Brief for the United States at

26), which would unconstitutionally broaden the scope of

warrantless searches incident to arrest. The United States

would permit the search of every conceivable type of

receptacle based upon some simplistic finding that the

search of the receptacle was some nebulous “part of the

arrest process”, regardless of the arrestee’s expectation of

privacy or the degree of control exercised by the officer over

the arrestee and the container making it impossible for the

arrestee to reach the container. Indeed, the rule proposed by

the Government would render meaningless the Chimel-

Chadwick-Sanders trilogy and would constitute a regres-

sion to the now discredited rule once enunciated by this

*In Sanders, Chief Justice Burger and Justice Stevens recognized that

“We are construing the Constitution, not writing a statute or a manual for

law enforcement officers” (442 U.S. at 768) (Burger, CJ. & Stevens, J,

concurring).

14

Court in United States v. Rabinowitz, 339 U.S. 56 (1950).

The Government urges that once an individual is arrested,

not only are all his privacy rights vitiated with respect to

items secreted on his person owing to the intrusive nature of

the arrest itself (United States v. Robinson, 414 U.S. 218

[1973]), but that this diminished expectation of privacy

Should have no boundaries and therefore be extended to

areas and containers within the “potential” reach of the

arrestee—even if these receptacles are actually outside of

the arrestee’s reach and in the officer’s exclusive control

such that they would not be subject to search under the

Chimel rule, which overruled the questionable holding of

Rabinowitz.

Any such rule which would permit the search of containers

not immediately associated with the person but all those

receptacles “potentially” within the arrestee’s reach, would

effectively extinguish the Chadwick-Sanders right to

privacy in receptacles seized by the officer and in his

exclusive control, which right exists whether the search is

remote in time and place (Chadwick) or spacially and

temporally at one with the arrest (Sanders, supra, at 762 ). In

fact, under such an ill-advised rule, it would be difficult to

imagine any arrest situation in which the warrant require-

ment would be operative.

Moreover, both petitioner and the United States have

strayed from the facts of this record, since they attempt to

create an impression not supported by the trial court

evidence that exigent circumstances arose out of the arrest of

respondent and his companions. Indeed, the facts are quite

to the contrary.‘ More importantly, not only was the

‘Although he was armed, the trooper never felt the need to draw his

service revolver (A-32, A-33). Prior to searching the jacket, he had

patted each defendant down, then placed them under arrest, separated

them, subjected them to a full-blown search, then patted the jacket down,

thoroughly satisfying himself that no weapons were present. Thus, the

actions of the arresting officer were not those of one who perceived the

situation as exigent.

15

warrantless seizure not justifiable by Robinson, supra, or

Draper v. United States, 358 U.S. 307 (1959), the search

clearly went beyond that permissible under Chimel in that

the jacket that was searched was outside of the area from

which it could have been reached by respondent or his

companions, as most vividly demonstrated by the fact that it

was in the immediate, exclusive possession and control of

Trooper Nicot at the time it was searched since as he stated,

the jacket was securely in his hands. Thus, any attempt by

petitioner or the Government to justify this illegal intrusion

into respondent’s private jacket pockets on grounds of search

incident to arrest must fail. Furthermore, the adoption of the

Government’s rule would violate the reasonable privacy

interests which arrestees possess in containers seized by

police and which are in the arresting authorities’ exclusive

control contrary to the spirit and letter of Chimel, Chadwick,

and Sanders.

A review of the recent applications of Sanders and

Chadwick confirms that the refusals of other courts to

uphold searches of “‘containers” in which the arrestee had an

expectation of privacy as incident to arrest when the arrestee

could not reach the container are in line with New York’s

decision and the body of law honed by this Court. A brief

review of Chadwick and Sanders establishes their applica-

bility to this case, which, contrary to the arguments of both

opponents, is not one involving a search incident to arrest,

but rather is concerned with an arrestee’s privacy expecta-

tions in the absence of exigent circumstances.

In Chadwick, supra, federal agents seized a footlocker

from defendant’s automobile and while it was within the

government’s exclusive possession and control, searched it,

discovering large amounts of marijuana. This Court granted

certiorari and in an opinion written by Chief Justice Burger,

16

affirmed the suppression orders entered below, stating:

“In this case, important Fourth Amendment privacy

interests were at stake. By placing personal effects

inside a double-locked footlocker, respondents mani-

fested an expectation that the contents would remain

free from public examination. No less than one who

locks the doors of his home against intruders, one who

safeguards his personal possessions in this manner is

due the protection of the Fourth Amendment Warrant

Clause. There being no exigency, it was unreasonable

for the Government to conduct this search without the

safeguards a judicial warrant provides” (433 U.S. at

11).

Rejecting the Government’s argument that the search was

justifiable as one incident to a lawful arrest, this Court stated:

“[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 or place from the arrest,’ Preston v. United States,

376 U.S., at 367, 84 S.Ct., at 883, or no exigency

exists. Once law enforcement 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” (Id. at 15; emphasis

supplied).

The facts in the more recently decided Sanders case do

not differ significantly from those in Chadwick.’ In

"That the search in Chadwick was removed in time and place while the

search in Sanders was contemporaneous is not a significant difference,

for in both cases the police had exclusive control of the receptacle from

the moment of the arrest such that its subsequent search was not incident

to arrest. See Sanders, supra, at 762. See also Chimel, supra.

17

Sanders, the Little Rock, Arkansas Police Department had

been told by a reliable informant that the defendant would be

arriving at a certain time aboard a specific flight and would

be carrying a green suitcase containing marijuana (442 U.S.

at 753). As predicted, the individual disembarked at the

appointed time and retrieved from the baggage area a green

suitcase matching the supplied description (/d.). After

having seen him place the suitcase in the trunk of a taxi,

police pursued the departing auto and stopped it several

blocks from the airport (Jd.). The driver opened the trunk

and revealed the green suitcase. Without asking permission

of the defendant or his companion, the police opened the

unlocked suitcase and discovered marijuana (J/d.).

The trial court denied the defendant’s suppression motion

and he thereafter was convicted of possession of marijuana

with intent to deliver (Jd. at 756). The Arkansas Supreme

Court reversed the conviction, ruling that the marijuana

should have been suppressed because it was obtained

through an unlawful search of the suitcase. The state’s

highest court found that although there was probable cause

for the officers’ belief that contraband was contained in the

suitcase, there were no exigent circumstances justifying the

failture to obtain a warrant, citing United States v. Chad-

wick, supra; Coolidge v. New Hampshire, 403 U.S. 443

(1971) (7d.).

Noting that this was the first occasion “to rule on the

constitutionality of a warrantless search of luggage taken

from an automobile lawfully stopped”’ (Jd. ), this Court held:

“(T]he warrant requirement of the Fourth Amendment

applies to personal luggage taken from an automobile to

the same degree it applies to such luggage in other

locations. Thus, insofar as the police are entitled to

search such luggage without a warrant, their actions

18

must be justified under some exception to the warrant

requirement other than that applicable to automobiles

stopped on the highway. Where—as in the present

case—the police, without endangering themselves or

risking loss of the evidence, lawfully have detained one

suspected or criminal activity and secured his suitcase,

they should delay the search thereof until after judicial

approval has been obtained. In this way, constitutional

rights of suspects to prior judicial review of searches will

be fully protected” (Id. at 766).°

Just as the defendant in Sanders was entitled to the

protection of the Warrants Clause and the evaluation of a

neutral magistrate before his privacy interests in the contents

of the suitcase were invaded so, too, was respondent entitled

to this protection before his expectation of privacy in the

zippered recesses of his jacket was overcome. ““The mere

reasonableness of a search, assessed in the light of the

surrounding circumstances, is not a substitute for the judicial

warrant required under the Fourth Amendment” (442 U.S.

at 758). Recent rulings by federal courts of appeal, suppress-

ing evidence seized under circumstances remarkably similar

It is clear that this Court did not intend the safeguards of Sanders to

apply solely to items of /uggage found in an automobile lawfully stopped.

This fact is evident in the statement that “[n]Jot all containers and

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

full protection of the Fourth Amendment” (Jd. at 764 n.13). In our case,

however, there exists no problem of classification, for the nature of a

multi-zippered jacket is such that it was intended to serve as a repository

for various items and that any article therein placed was expected to be

kept private. Indeed, what could be more private than one’s own pockets!

Even the Government agrees that the pockets of a jacket constitute a

container in which one possesses a reasonable expectation of privacy

(Brief for the United States at 10, 20).

19

to those of our case, support respondent’s reliance on the

correctness of the New York Court of Appeals decision,

which in turn relied upon Sanders.

For example, in United States v. Benson, 631 F.2d 1336

(8th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3753

(U.S. Feb. 4, 1981) (No. 80-1317), state narcotics in-

vestigators had probable cause to arrest Benson for posses-

sion of cocaine. Immediately prior to his arrest, Benson was

seated in the front passenger seat of a four-door compact

station wagon and his brown leather tote bag was resting on

the passenger side of the back seat.’ Upon being arrested,

Benson was physically removed from the vehicle by the

officer and placed in a search position with his hands on top

of the automobile. At the same time, another officer seized

the tote bag from the back seat and opened it to discover a

small blue drawstring bag bearing the words “‘Rich Lights”’.

The officer determined by feel that the bag held a soft,

powdery substance and upon looking inside, found a plastic

bag containing a substance later determined to be cocaine.

In reversing Benson’s conviction of possession with intent

to distribute and conspiracy to distribute cocaine, the Eight

Circuit relied upon its prior decisions in United States v.

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

v. Stevie, 582 F.2d 1175 (8th Cir. 1978), cert. denied, 443

U.S. 911 (1979), as well as Sanders, supra, when it held

that the defendant had a legitimate expectation of privacy in

the tote bag and further that:

“(The officers should have obtained a warrant before

searching the tote bag. The bag was not ‘immediately

7A police informant was situated in the driver’s seat. The car was

located in an airport parking lot.

20

associated with the person of the arrestee,’ . . . either at

the time the luggage was seized or at the time it was

searched. At the time the tote bag was seized, Benson

was seated in the front seat of the vehicle and the bag

was in the back seat. . . . The bag was clearly under

Officer Hutchinson’s exclusive control at the time he

opened and search it, and there was no longer any

danger that Benson might gain access to the bag to

destroy evidence or grab a weapon... . [There is no

allegation that the bag held ‘instrumentalities which

could be dangerous even when sitting idly in the police

locker.’ [citations omitted] Once the police officers

seized the bag and exercised exclusive control over it,

they should have delayed searching it until judicial

approval had been obtained” (631 F.2d at 1340;

emphasis supplied).

As the above description of the facts indicates, the

circumstances of the search in Benson, supra, are remark-

ably similar, however, less compelling than those in the

instant case where neither respondent nor his companions

was even in the vehicle at the time of the search.

United States v. Rigales, 630 F.2d 364 (5th Cir. 1980),

provides a further illustration of a correct application of the

Sanders holding to facts similar to those at bar. There the

defendant-driver of a car in which two men and two women

were passengers, was arrested for crossing a dirt median and

for displaying dealer plates. After a thorough pat-down of all

the passengers revealed nothing, the officer shined a flash-

light into the automobile. There was illuminated on the floor-

board of the front seat a zippered 12” x 14” x 2-1/2” case of

leather or simulated leather with a bulge. The officer

suspected the case contained a gun and when he picked it up,

he found it very heavy. Without any further investigation, the

21

officer opened the case to discover a loaded pistol. In

condemning the search, the Fifth Circuit wrote:

‘After a close examination of the record, we find that

the instant case is controlled by Sanders. The govern-

ment conceded at oral argument that Officer Lopez

could easily have taken the zipped case to the police

station and secured a warrant from a magistrate. In our

view, this is tantamount to an admission that no exigent

circumstances existed to justify the warrantedless

search. Officer Lopez’ testimony supports this view. He

testified that he had asked all the occupants of the

automobile to step outside the vehicle and had patted

them down; there is no indication that the case was

within the reach or control of the defendant or any of

the passengers. ... Assessing ‘the exigency of mobility’

at the point immediately before the search, as we are

required to do by Sanders, 442 U.S. at 763,... we

conclude that the government has failed to carry its

burden of demonstrating that exigent circumstances

existed to justify a warrantless search of the zippered

case”’ (630 F.2d at 367; emphasis supplied).

See also United States v. Montano, 613 F.2d 147 (6th Cir.

1980), unlawful search of suitcase in defendant’s motel

room in presence of arrestees; United States v. Ross, 27

Crim.L.Rptr. 2169 (D.C. Cir. Apr. 17, 1980), illegal search

of leather pouch found in car trunk while arrestee was

outside of car in custody of officers; United States v. Miller,

608 F.2d 1089 (Sth Cir. 1979), cert. denied, 100 S.Ct. 3020

(1980), search of contents of portfolio found in automobile

while passenger was still present in vehicle not compatible

with Fourth Amendment; People v. Robbins, 103 Cal.App.

3d 34, 162 Cal.Rptr. 780 (1980), cert. granted, 49

U.S.L.W. 3515 (U.S. Jan. 19, 1981) (No. 80-148), cookie

tin and tote bag found in passenger and luggage compart-

ments respectively, while arrestee was outside of car,

22

conceded to be closed containers for which warrants were

required.

The facts and circumstances of our case bring it squarely

within the logic of Sanders, Benson, and Rigales. Once

respondent was arrested for marijuana possession, any

arguable exigency ceased, since under the circumstances, at

that point in time, all of the travelers were in custody, had

been thoroughly searched, the inner portion of the vehicle

proper had been searched and the jacket, once patted down,

was actually in the hand of the police officer, and thus, in his

exclusive possession and “immediately associated” with the

person of the police and not of the arrestees. The arrest

process was thus completed, and the prisoners were at that

point simply to be transported to the waiting magistrate. The

obviously portable jacket not only could have been easily

secured, as were the trunk in Chadwick, the suitcase in

Sanders, the tote bag in Benson, and the leather case in

Rigales, but was in fact secured by Trooper Nicot who took

it with him to the magistrate in his vehicle. A warrant

application could have been made to the arraigning justice

before whom the defendants were to be shortly brought.*®

*That the four defendants were to be transported to the trooper

substation and were to be arraigned before a magistrate is foregone by

several events which occurred before the alleged cocaine was even

discovered: (1) the driver was arrested for substantially exceeding the

speed limit (A-13, A-42); (2) all occupants of the vehicle were from out-

of-town; (3) the vehicle was registered to a woman to whom none of the

occupants was related (A-17); (4) the driver presented to the officer the

license of another individual not present in the vehicle (A-18, A-32); (5)

all of the passengers according to the trooper were placed under arrest as

soon as they exited the vehicle (A-18, A-19); (6) each passenger was

given is custodial rights under Miranda as soon as the marijuana was

discovered (A-21); (7) the arresting officer acknowledged that once the

marijuana was discovered, all occupants were in custody and were going

to be brought before the court (A-18-A-21, A-42, A-43, A-48).

23

There was no compelling need for the trooper to have

examined in any way the private interiors of the jacket in the

absenc eof a warrant, especially since the jacket (1) was

totally outside of the reach of the four arrestees, (2) was in

the trooper’s exclusive control, i.e. his hands, and (3) had

been patted down by the officer and was found to contain no

weapon or dangerous instrumentality. °

Indeed, the lacke of exigency is underscored by the fact

that Trooper Nicot actually took possession of the jacket at

the scene and brought it to the courthouse. There he could

have easily detailed any existing reasons which he felt

established the requisite probable cause necessary to obtain

a warrant to open the pockets and seize any items therein. It

would then be left to the discretion of a neutral magistrate to

determine objectively whether the trooper had presented

facts amounting to probable cause to believe the jacket

contained contraband. '° Since these procedures could easily

have been implemented, but were not, it is apparent that the

search of the jacket without a warrant was in violation of

respondent’s Fourth Amendment rights and was therefore

unreasonable.

°As the Court of Appeals stressed, “‘[o]ne searches the record in vain

for support of the dissenter’s claim that at the time of arrest—the point

from which the predicate for the warrantless search is measured—‘the

jackets were within the reach of the four suspects and had not yet been

reduced to the exclusive control of the officer’ (dissenting opn [A-83])”

(A-81,n.2). To be legally justified, the exception of a warrantless search

incident to arrest must be founded on evidence that the jacket was within

the immediate control of the arrestees. The record in this case clearly

refutes that assertion.

‘This Court in Sanders, quoting from Coolidge v. New Hampshire,

403 U.S. 443, 481 (1971), noted that the “‘warrant requirement is not an

inconvenience to be somehow ‘weighed’ against the claims of police

efficiency” (442 U.S. at 758).

24

CLAIMS OF PETITIONER

As noted above, petitioner’s entire argument basically

parrots the unsupported views of the two dissenting justices

in the court below that the arresting officer was in some form

of immediate danger not disclosed by the record. Petitioner

certainly did not meet its burden of demonstrating that the

warrantless search of a private container outside of the

arrestees’ reach was justifiable on the basis of physical

jeopardy to the trooper. The fact that, following the arrest,

none of the arrestees could reach the receptacle militates

against such a finding of exigency. Moreover, such a

determination was not made because the trooper plainly

stated that he subjected each of the passengers to a thorough

search, patted the jacket down and discovered no weapons,

and accordingly, found no reason to even unholster his

service revolver. Thus the warrantless search of respon-

dent’s jacket cannot be sustained as one incident to arrest.

Chimel, supra. Further, the authorities relied upon by

petitioner involve cases where warrantless searches were

upheld in wholly disparate factual situations.

For example, United States v. Fontecha, 576 F.2d 601

(Sth Cir. 1978), was decided prior to Sanders and involves

entirely different principles tied to searches conducted at

borders. Similarly, in United States v. Foster, 584 F.2d 997

(D.C. Cir.), cert. denied, 439 U.S. 1006 (1978), a police

officer, who was suspicious of the actions of three passengers

in the handling of a foided grocery bag, touched the bag and

feeling a weapon, was justified in opening the container—not

one in which one could maintain a reasonable expectation of

privacy.

A comparable situation existed in United States v.

Wilkerson, 598 F.2d 621 (D.C. Cir. 1978), where after the

25

appellant-passenger had alighted from the vehicle at the

officer’s request, the officer reached into the front seat and

placed his hand on a coat, pressed it and felt something like a

shotgun. This coupled with the fact that none of the

passengers had been searched or placed under arrest, clearly

distinguishes this case from our own.

In United States v. Agostino, 608 F.2d 1035 (Sth Cir.

1979), the court upheld the warrantless seizure because the

contraband was in plain view, or in the alternative, because it

was located within the reach of the defendant-driver. In our

case, there was no finding that following the arrest the jacket,

lying in the middle of the back seat of a two-door vehicle, was

accessible to any of the four arrestees, all of whom were

standing outside of the automobile in the custody of an

armed state trooper. In fact, as the Court of Appeals noted,

the jacket in this case was not accessible to respondent or any

of his confederates. See People v. Belton, 50 N.Y.2d 447,

452 n.2 (1980). In United States v. Ajlouny, 476 F.Supp.

995 (E.D.N.Y. 1979), the searched briefcase was within the

defendant’s immediate control as it was only a few feet from

him as he sat in the driver’s seat of his car. United States v.

Ocampo, 492 F.Supp. 1211 (E.D.N.Y. 1980), is similarly

unpersuasive because the open and unsecured bag, in which

the defendant could have no reasonable expectation of

privacy, was within the “grabbable”’ range of the defendant

who was merely within arm’s length of it.

Factual situations relied upon by petitioner are vastly

different from those about which we are concerned where

none of the arrestees was within reaching distance of

respondent’s jacket which had been secured by Trooper

Nicot’s grasp. Similarly, respondent’s claims to a privacy

interest in his jacket pockets are not “misplaced” (Peti-

tioner’s Brief at 24) because, as noted above, pockets are a

26

respository of one’s most personal items. Further, the

language quoted by petitioners from United Sttes v.

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

because that case held that it is not reasonable to expect

privacy in the plastic bags there—a vasly different container

than the zippered pockets of a jacket searched here."

Petitioner in essence requests this Court to set forth a

static formula to be applied to fluctuating factual situations.

It urges this Court to hold that no werrantless search of a

private container and seizure of evidence from this receptacle

when it is outside of the defendant’s immediate area and thus

Nor do the state authorities relied upon by petitioner support its

claim that the Court of Appeals’ decision is incorrect. For example, in

State v. Hunter, 261 S.E.2d 189 (N.C. 1980), the police had probable

cause to believe that the defendant had just committed the crime of rape

at gunpoint. In Hunter, unlike here, there existed probable cause to

believ ethat a gun was present in the vehicle in which the defendant had

allegedly just committed a violent crime, thus supporting a different

exception to the warrant requirement (Chambers v. Maroney, 399 U.S.

42 [1970]). See also Banks v. State, 246 Ga. 178, 269 S.E.2d 450

(1980), where police had probable cause to believe that defendant

possessed the weapon with which he allegedly committed murder and

aggravated assault and had patted down a shirt from which the gun fell

out. The situations of an alleged rapist and an alleged murderer whom the

police had probable cause to believe were armed are vastly different from

that presented by our case where respondent and his companions were

arrested for possession of a quantity of marijuana so small it did not even

amount to a crime. In State v. Wilkens, 354 So.2d 934 (La. 1978), a

syringe discovered on the floor of the auto, directly below where the

defendant stood, was within the “‘grabbable” range of the defendant, as

well as within the plain view of the officer. In our case, however, the

discovery of the cocaine within the zippered pockets of a black leather

jacket in the back seat of a car, while respondent and his confederates

were outside of the vehicle, cannot be said to have been within their

immediate control or in plain view. Accordingly, Hunter, Banks, and

Wilkens do not present any authority for this Court to disturb the

decision of the New York Court of Appeals.

27

within the officer’s exclusive control is illegal unless there

are “x” number of police officers per “y’ number of

defendants, and “z” number of sets of handcuffs, etc. No

such formula is possible, however, because every confronta-

tion between a citizen and police is different and expands or

contracts the degree of warrantless evidence acquisition

which is constitutionally tolerable. The necessary flexibility

needed to deal with such diverse factual situations is

reflected by the highly workable standards fashioned by this

Court in Chimel, Chadwick, and Sanders. '*

ARGUMENTS OF THE GOVERNMENT

As indicated supra, the United States has chosen not to

align itself with petitioner’s argument and, in fact, maintains

that considerations such as the number of arresting officers

per suspects; the place of arrest; the nature of the container;

and the suspect’s position with respect to the receptacle are

irrelevant. The Government’s only inquiry would be

“‘whether or not the search was undertaken as part of the

arrest process” (Brief for the United States at 26). If so, the

Government claims that the privacy expectation one has in

containers would be subsumed by the privacy breach caused

by the initial arrest as in the case of the search of the person

incident to arrest. See United States v. Robinson, 414 U.S.

218 (1973).

'?That under these rules different results will occur in different factual

situations, see e.g., State v. Cripps, 582 P.2d 312 (Mont. 1978), State v.

Blanchard, 374 So.2d 1248 (ia. 1978), State v. Robalewski, 418 A.2d

817 (R.1. 1980) (Petitioner’s Brief at 17), does not render the decision of

the New York Court of Appeals incorrect but merely points out the

necessary flexibility a constitutional standard must have in orde to

accommodate a number of diverse factual settings while at the same time

maintaining an overall common understanding of applicability.

28

Leaving aside for the moment that the dimensions and

boundaries of this nebulous “arrest process” concept are

significantly more difficult to determine than are the Chimel

and Sanders rules to apply, we are faced with the prospect of

the creation of a limitless “‘zone of search license” which

would render nullities this Court’s decisions in Payton v.

New York, 445 U.S. 573 (1980), Sanders, Chadwick and

Chimel. Moreover, the exceptions to the Fourth Amend-

ment’s warrant requirement which have been refined by this

Court, whose decisions have in turn been relied upon by

countless other judicial tribunals, would be expanded such

that the Fourth Amendment’s prohibition against warrant-

less searches and seizures would be rendered meaningless

once the so-called “arrest process” suggested by the Gov-

ernment began, regardless of exigencies, proximity to or

control by individuals of “‘containers”’, etc. Thus, the law in

this regard would return to the state embodied by decisions

such as Rabinowitz which was soundly criticized by this

Court more than ten years ago in Chimel.

This radical approach would require this Court to

drastically overhaul the entire body of law reflected by

Sanders and Chimel. Furthermore, none of the decisions

cited by the United States even remotely suggests that if the

“arrest process” is not “complete’’, the police possess carte

blanche to search not only the arrestee’s peson, but his car,

the room or rooms in his house occupied at the time of his

arrest, and the most secure recesses of any and all containers

or receptacles that may be located within the arrestee’s

“potential” control, regardless of the exclusivity of control

exercised by the police over the searched article, preventing

an arrestee from grabbing a weapon or destroying evidence,

and the arrestee’s expectation of privacy in the receptacle

searched.

29

Five of the eight cases cited by the Government in support

of a contemporaneous search of containers whether or not

they are in the grabbable reach of immediate control of the

suspect at the time of arrest (Brief for the United States at 17,

fn.7), were decided prior to this Court’s pronouncements in

Chadwick and Sanders. They therefore fail to reconcile the

principles established by these now controlling authorities.

In United States v. Dixon, 558 F.2d 919 (9th Cir. 1977),

cert. denied, 434 U.S. 1063 (1978), the court upheld the

seizure cf a revolver from the inside of a brown paper bag.

This case’? is distinguishable from the instant case because

one cannot be’ said to have a reasonable expectation of

privacy in a brown bag, whereas an individual should

reasonably expect that articles which he places in the

pockets of his jacket (especially those which are zippered)

will remain free from public scrutiny. A further distinction

can be seen in United States v. Garcia, 605 F.2d 349 (7th

Cri. 1979), cert. denied, 446 U.S. 984 (1980), where the

suitcase whose search was sustained was found ready-to-

hand and within the immediate control of the defendant and

an as-yet-unidentified accomplice in a busy airport, unlike

the jacket here which was in the middle of the back seat of a

two-door vehicle while the arrestees, who were completely

outside of the vehicle, were in the custody of an armed

trooper. Finally, in United States v. Graham, 28 Crim.L.

Rptr. 2528 (7th Cir. Jan. 27, 1981), the court sustained the

search of a shoulder bag, appended to the arrestee’s body,

pursuant to a warrant authorizing the search of his person.

Not only was there no warrant in the present case, the jacket

which was illegally invaded was not at all near respondent or

'3A]though Chadwick had been decided barely a month before, there

is no indication that its principles were raised or considered by the Court.

30

his companions, who were in the custody and control of the

arresting officer.

Contrary to the contention of the United Sttes, the factors

of the degree of control exercised by the officer over the

container, the probability of the arrestee’s reaching the

receptacle, and his expectatior .f privacy therein are not

“hairline distinctions” (Brief for the United States at 24),

but are precisely the circumstances which this Court has

employed to decide whether limited exceptions will be made

to the strict warrant requirement of the Fourth Amendment

when “containers” as opposed to the person are sought to be

searched incident to arrest. Indeed, these considerations are

the foundation of this Court’s decisions in Chimel and

Sanders. Under the Government’s proposed scheme,

factors such as whether the arrestee is located outside of the

vehicle and the container inside away from his reach;

whether the arrestee is under arrest and in custody; whether

the container is in the hands of the authorities and thus under

their exclusive control would be of no moment. The United

Sttes would sanction a search and seizure in each of these

situations as long as the so-called “arrest process’ was

“continuing”, ,resumably up until after the arrestee has

been booked and ijocked into a cell.

Such a concept would expand beyond all tolerable limits

the very narrow exception created by this Court in Chimel

and aswell invalidate the holdings in Chadwick, Sanders,

and other decisions based upon the same principles, where

the lack of exigency as typified by the exclusive control of

private containers by the police was given controlling

consideration. The net result of the rule lobbied for by the

Government would be to permit the intrusion into any type

of container regardless of exigencies, or the arrestee’s

reasonable expectation of privacy as long as it was preceded

31

by an arrest. Indeed, under the Government’s view, warrant-

less searches would become the rule rather than the

exception.

Contrary to the Government’s reading of the opinion,

there is nothing in the New York Court of Appeals decision

which could in any way be interpreted as questioning the

legality of a legitimate search incident to arrest if, from the

specific circumstances, the item seized was clearly within

the “grabbable” area of the arrestee. The decision below is

predicated not only upon the fact that the trooper had

“exclusive cuntrol” of the jacket at the time he opened its

zippered recesses but also that the State failed to prove that

the jacket was therefore within the immediate control or

reach of respondent or his companions, such that its search

was incident to their arrest.

Quite another question would be presented if respondent

actually had been wearing the jacket ui the time of his arrest.

Although United States v. Robinson, 414 U.S. 218 (1973),

held that an item seized from the person of the arrestee

during a search incident to a custodial arrest is admissible

into evidence, such is not the case when the intrusion is

extended beyond the arrestee to private possessions not

immediately associated with his person as in the case at

bar. '* Thus, any attempt to analogize robinson to our case is

“Moreover, New York’s highest court has chosen to ait a stricter

code of constitutional protections for its citizens than that required in

United States v. Robinson, supra. See, e.g., People v. Weintraub, 35

N.Y.2d 351, 320 N.E.2d 636, 361 N.Y.S.2d 897 (1974). See also Lego

v. Twomey, 404 U.S. 477, 489 (1972). In Cooper v. Marin, 49 N.Y.2d

69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979), cert. denied sub nom.

Lombard v. Cooper, 100 S.Ct. 2965 (1980). The New York Court of

Appeals recognized:

“We have not hesitated when we concluded that the Federal

Constitution as interpreted by the Supreme Court fell short of

(continued)

32

doomed to failure because of the extreme disparity in their

facts and the marked distinction in privacy interests at stake.

Moreover, it is respondent’s contention that the decision

below was decided correctly and is in complete accord with

the principles enunciated in Chimel, Chadwick, and

Sanders and that any application of some ambiguous “arrest

process’ analysis is in direct defiance of the limited excep-

tions to the Fourth Amendment warrant requirement created

by this Court. A return to Rabinowitz by adopting the

Government’s suggested extension of the Robinson doctrine

would clearly be at war with the modern teachings of this

Court expressed in Chimel, Chandwick, Sanders, Payton

and numerous other well-reasoned decisions.

CONCLUSION

Today, more than any other time in our history, liberty is

being imperiled for the sake of order. If there is a danger from

those who would violate our laws, there is also a danger from

the law abiding who, in an excess of anxiety, may jeopardize

ourindividual liberties with a view to enforcing the law. In

one sense the safety of the community may be endangered by

(footnote continued from preceding page)

adequate protection of our citizens to rely upon the principle that

that document defines the minimum level of individual rights and

leaves the States free to provide greater rights for its citizens

through its Constitution, statutes or rule making authority

(Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 159-161, 408

N.Y.S.2d 39, 43-45, 379 N.E.2d 1169, 1173-1174; People v.

Isaacson, 44.N.Y.2d 511, 519-520, 406 N.Y.S.2d 714, 718-719,

378 N.E.2d 78, 81-83; People v. Hobson, 39 N.Y.2d 479, 483-

484, 384 N.Y.S.2d 419, 421-422, 348 N.E.2d 894, 897-898;

People v. Arthur, 22 N.Y.2d 325, 328-329, 292 N.Y.S.2d 663,

665-666, 239 N.E.2d 537, 538-539...” (Id. at 79, 424 N.Y.S.2d

at 174).

33

restricting the power of the police to arrest persons and

search their private belongings without a warrant. But in a

more vital sense, the peace of the community is preserved by

decisions, such as Chimel v. California, United States v.

Chadwick, and Arkansas v. Sanders, which protect all of us

from unlawful arrests, searches and seizures.

Law enforcement entails the con-ideration of value far

more important than the conviction of one defendant. It

involves the protection of the community’s rights to privacy

which are of transcendent importance. The past judgments

of this Court, which have preserved the right of privacy,

serve the further protection against the most horrifying

symbol of a police state—the arbitrary arrest, detention and

search of citizens by policemen who have become masters

rather than servants of the law.

We must never forget that unconstitutional practices

begin by silent approaches and slight deviations from

required legal procedures. Such an erosion of constitutional

safeguards can only be avoided by strict adherence to the

established rules of this Court that are designed to protect

everyone’s security. That is all we ask here.

34

For all the foregoing reasons, the judgment of the New

York Court of Appeals should be affirmed.

Respectfully submitted,

PAUL J. CAMBRIA, JR.

LIPSITZ, GREEN, FAHRINGER,

ROLL, SCHULLER & JAMES

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

Attorney for Respondent

Of Counsel:

BARBARA DAVIES EBERL

One Niagara Square

Buffalo, New York 14202

(716) 849-1333