Petitioners Brief — United States v. Ross

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UNITED STATES OF AMERICA, PETITIONER

ALBERT Ross, Jk.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

JOHN FICHTER De Pug

Attorney

Department of Justice

Washington, D.C. 20680

(202) 633-2217

— —

QUESTION PRESENTED

Whether a warrantless search, based upon probable

cause, of a closed but unsealed paper bag found in the

trunk of respondent’s automobile during a lawful search

of the automobile was permissible under the Fourth

Amendment.

(1)

TABLE OF CONTENTS

e aaah cinednsncimeqens

r besvenseenangenerendaneheneabcvetont

Constitutional provision involve

Statement r 2 —

Introduction and summary of argument

Argument:

I. A warrant is not required to render reasonable

a probable cause search of a container, unless

the container is of a kind conventionally re-

garded as embodying a substantial privacy in-

j eee

A. A warrantless probable search is reasonable

under the Fourth Amendment when the

social cost of requiring this additional pro-

cedure outweighs the benefits that would be

B. The marginal benefit of requiring that a war-

rant be secured prior to search of a low-

privacy container lawfully seized by police is

outweighed by the costs to society, and to

the individual whose belongings are seized,

of requiring this procedure

C. Most bags and parcels cannot support a justi-

fiable expectation of a substantial degree of

privacy .......... 1

D. The imposition of a warrant requirement for

all “container” searches cannot be justified

on the ground that it will provide a clear

„„ „„ eee

II. No warrant is required to search a container

discovered in the course of a lawful search of a

e .....

a no — HDD —

Argument-—Continued : Page

A. A search of a container found in the course

of a lawful warrantless automobile search is

an integral part of the search of the auto-

mobile 42

B. Even if some containers discovered in the

course of an automobile search deserve the

additional protection of the warrant proce-

dure, there is no reasonable basis for treat-

ing insubstantial containers differently from

compartments of the automobile 46

EEO Re ce Ac PL, oe 47

TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S. 7588 passim

Barger v. United States, No. 80-5130 (6th Cir, Apr.

28, 1981), cert. denied, No. 80-6914 (Oct. 5,

1981) .... 84

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 408 U.S. 3889h)).. 28

Boyd v. United States, 116 U.S. 61 45

Cady v. Dombrowski, 418 U.S. 43333 17, 18

Camara v. Municipal Court, 387 U.S. 528 ................ 16, 21

Cardwell v. Lewis, 417 U.S. 583888 18, 36, 37

Carroll v. United States, 267 U.S. 182 ......15, 17, 32, 42, 45

Chambers v. Maroney, 399 U.S. 42 17, 18, 28, 32, 42

Chimel v. California, 895 U.S. 7522 17, 29

Colonnade Catering Corp. v. United States, 397

ä 18

Coolidge v. New Hampshire, 403 U.S. 44333 16, 17

Cooper v. California, 886 U.S. 58 -..............0000000.. 17, 42, 45

Donovan v. Dewey, No. 80-901 (June 17, 1981) 18

Franks v. Delaware, 488 U.S, 1644 23

Government of the Virgin Islands v. Rasool, 657

OEE eee 8, 38

Harris v. United States, . 35

Jackson, Ex parte, 96 U.S. 7277 37

Cases Continued Page

Johnson v. United States, 333 U.S. 10 20

Katz v. United States, 389 U.S. 347 . 37

Marshall v. Barlow’s, Inc., 436 U.S. 307 .. . 21

Mathews v. Eldridge, 424 U.S. 3199 20

Mincey v. Arizona, 487 U.S. 38 38

New York v. Belton, No. 80-828 (July 1, 1981) ....17, 29, 39

Payton v. New York, 445 U.S. 57999 16

People v. Robbins, 103 Cal. App. 3d 34, 162 Cal.

r 24

Rakas v. Illinois, 489 U.S. 188222 32, 36, 45, 47

Robbins v. California, No. 80-148 (July 1, 1981) ....passim

Schneckloth v. Bustamonte, 412 U.S. 218 27

Shadwick v. City of Tampa, 407 U.S. 345 23

Sharpe v. United States, Nos. 79-5314 & 79-5315

(4th Cir. Sept. 4, 1981), petition for rehearing

BLN TA a OE 8, 32

South Dakota v. Opperman, 428 U.S. 364 19, 22, 29

„ e 16

United States v. Bis well, 406 U.S. 3111 . 18

United States v. Brignoni-Ponce, 422 U.S. 878 16

United States v. Brown, 635 F.2d 1207 31

United States v. Bush, 647 F.2d 3577 31

United States v. Callison, 577 F. 2d 53, cert. denied,

c vehnoniedasnsesaon 42

United States v. Chadwick, 433 U.S. 111 passim

United States v. Cleary, 656 F.2d 1302, petition for

cert, pending, No. 81-953 (filed Nov. 20, 1981).... 8, 32,

33, 35

United States v. Delos-Rios, 642 F.2d 42, cert. de-

nied, No. 80-6420 (Apr. 27, 19817 31

United States v. DeSimone, No. 79-5675 (5th Cir.

,,, ̃ 26 no ee 42

United States v. Dien, 609 F.2d 1038, adhered to

ee 32, 37

United States v. Finnegan, 568 F.2d 6377 6

United States v. Foskey, 686 F.2d 517 31

United States v. Gooch, 608 F.2d 122 32

United States v. Goshorn, 628 F. 2d 6977 31, 36

United States v. Honigman, 638 F.2d 133 32. 33

United States v. Jimenez, 626 F. 2d 399 31

Cases—Continued Page

United States v. Kralik, 611 F.2d 34888 42

United States v. Mackey, 626 F.2d 684 31-32, 33, 46

United States v. Mannino, 635 F.2d 110 .................. $1, 33

United States v. Markland, 635 F.2d 174, cert. de-

nied, No. 80-6454 (May 18, 198177 31, 37

United States v. Mefford, 658 F.2d 58 8

United States v. Meier, 602 F. 2d 25888 31

United States v. Mendenhall, 446 U.S. 544 .............. 27

United States v. Miller, 608 F.2d 1089 31

United States v. Montano, 613 F.2d 147 31

United States v. Moschetta, 646 F. 2d 955, petition

for cert. pending sub nom. United States v. Spie-

ler, No. 81-908 (filed Nov. 13, 1981) 31

United States v. Presler, 610 F.2d 1206 31

United States v. Rivera, No. 80-1115 (5th Cir.

Sept. 2, 1981), petition for rehearing pending.... 8

United States v. Robinson, 414 U.S. 218 .................. 29

United States v. Sutton, 636 F.2d 9 31

United States v. Weber, Nos. 80-1533, et al. (1st

Cir. Sept. 30, 1981), petition for rehearing en

1 c 8, 32, 34, 39, 40

Warden v. Hayden, 887 U.S. 2944 16, 43

Zurcher v. Stanford Daily, 436 U.S. 547ʒ˖7 42

Constitution and statutes:

United States Constitution:

Fourth Amendment passim

„„ rr 9

Act of July 31, 1789, ch. 5, Section 24, 1 Stat. 43. 15

Act of Mar. 3, 1815, ch. 94, Section 2, 3 Stat. 232. 15

Act of July 18, 1866, ch. 201, Section 3, 14 Stat.

een 15

18 U.S.C. App. 120 (a) . ... .. . be 29

, . 2

XT... 45

D. C. Code Ann. § 22-8204 (1973)))))!: 29

D.C, Code Ann. § 33-417 (1973) . 45

VII

Miscellaneous: Page

1 Cong. Deb. 783 (Gales & Seaton ed. 18384) 15

Fraenkel, Concerning Searches and Seizures, 34

ZZ 15

2 W. LaFave, Search and Seizure (1978) 33

N. Lasson, The History and Development of the

Fourth Amendment to the United States Consti-

eee eee 14, 15

T. Taylor, Two Studies in Constitutional Interpre-

r . 15

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 80-2209

UNITED STATES OF AMERICA, PETITIONER

ALBERT Ross, JR.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App.

la-117a) is reported at 655 F.2d 1159. The opinion of

the court of appeals panel (Pet. App. 120a-158a) is

unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

118a-119a) was entered on March 31, 1981. On May 21,

1981, the Chief Justice extended the time within which

to file a petition for a writ of certiorari to and including

June 29, 1981. The petition was filed on that date and

granted on October 13, 1981. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution provides:

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

houses, papers, and effects, against unreasonable

(1)

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

STATEMENT

Following a jury trial in the United States District

Court for the District of Columbia, respondent was con-

victed on one count of possession of heroin with intent to

distribute, in violation of 21 U.S.C. 841(a). He was

sentenced to a term of from 20 months to five years’

imprisonment, followed by a six-year special parole term.

Both the panel and the en banc court of appeals reversed

the conviction.

1. As reflected in the opinion of the en bane court

(Pet. App. 4a-6a), evidence developed during a suppres-

sion hearing showed that on November 27, 1978, a Dis-

trict of Columbia police detective was told by a reliable

informant that he had observed a man known as “Bandit”

selling narcotics from the trunk of a maroon two-door

Chevrolet Malibu automobile (H. Tr. 4)“ Upon arriv-

ing at the address specified by the informant, the detec-

tive, accompanied by two other police officers, observed a

vehicle being driven by respondent that matched the in-

formant’s description. The officers ascertained that it was

registered to respondent, who, they learned, bore the

nickname “Bandit” (H. Tr. 5). They then stopped the

vehicle, identified themselves, and asked respondent to

step out. While one of the officers searched respondent,

a second police officer spotted a round of ammunition on

the front seat of the car. The officer retrieved the am-

munition and searched the interior of the vehicle for

weapons, finding a pistol in the glove compartment (H.

Tr. 8-10, 49).

After respondent was arrested, the third officer un-

locked and searched the vehicle’s trunk (H. Tr. 59, 66).

The search was conducted because the information re-

1H. Tr.” denotes the transcript of the suppression hearing.

ceived from the informant indicated that “there was a

quantity of heroin secreted in the trunk of the car“ (id.

at 66). In the trunk, the officer discovered a brown paper

lunch bag with a folded but unsealed top and a zippered

leather pouch. He opened the paper bag and discovered in

it a number of glassine envelopes each containing a white

powder. Leaving the paper bag and the leather pouch in

the trunk, the officers drove respondent’s automobile to

the police station At the station, the officers reopened the

paper bag and sent the glassine envelopes to the police

laboratory for analysis. Each proved to contain a quantity

of heroin. One of the officers then opened the leather

pouch as well, and found that it contained $3,200 in cur-

rency (H. Tr. 66, 67, 82). No search warrant had been

obtained at any point in this sequence of events. On the

basis of this evidence, adduced at the suppression hearing,

the trial judge denied respondent’s motion to suppress the

contents of the paper bag and the leather pouch. Re-

spondent was convicted after trial and appealed from his

conviction. Pet. App. 123a.

2. On appeal, a panel of the court of appeals reversed

respondent’s conviction. The members of the panel agreed

that, because the police lacked a search warrant, the

search of the zippered leather pouch was unlawful, and

the currency that was discovered in the pouch should have

been suppressed (Pet. App. 137a-138a, 189a). However,

a majority of the panel held (id. at 124a-137a) that the

warrantless probable cause search of the paper bag was

permissible because respondent “could not reasonably

harbor an expectation of privacy in his paper bag be-

yond that existing due to actual possession” (id. at

136a). Concluding that admission into evidence of the

currency found in the pouch was not harmless error (id.

at 138a n.7), the panel remanded for further proceedings

consistent with the opinion.

In distinguishing respondent’s paper bag from the

leather pouch and other kinds of substantial and secure

containers in the nature of luggage, the panel majority

relied upon this Court’s statement in Arkansas v. Sanders,

442 U.S. 753, 764 n.13 (1979), that although a warrant

is generally required to search luggage seized from a ve-

hicle, absent consent, exigent circumstances, or other

recognized predicate for a warrantless search, “[n]ot all

containers and packages found by police during the course

of a search will deserve the full protection of the Fourth

Amendment.” The panel observed that unsealed paper

bags differ from luggage and other common repositories

for personal effects in two respects it deemed significant

for Fourth Amendment purposes. First, the panel noted

the physical and functional attributes of such a container

(Pet. App. 134a) :

[Plaper bags offer at best only minimal protection

against accidental and deliberate intrusions. A paper

bag can fall open or break very easily. It presents no

real obstacles to invasions by the curious or the

dishonest once it has left its owner’s actual pos-

session. Because it is neither so secure nor so per-

manent as typical forms of luggage, its contents are

much more likely to become subject to public display

than if the same items had been stored in luggage.

Thus, it is doubtful that one realistically can ex-

pect a paper bag to remain closed or intact, its con-

tents unrevealed, at least if it has left its owner’s

hands.

Second, the panel noted that the conventional uses of

paper bags do not include those which require a high

degree of privacy, concluding that society recognizes only

a limited expectation of privacy in such a container (ibid.;

emphasis in original; footnote omitted):

[PJaper bags are not inevitably associated with the

expectation of privacy. See Arkansas v. Sanders,

442 U.S. 752, 762 (1979). Although a paper bag

may be pressed into service 2% a repository of per-

sonal effects, we do not believe a reasonable man

would identify a paper bag as a normal place

to entrust his intimate personal possessions. In

contrast, luggage in general serves to carry clothes,

toiletries, and other items associated with day-to-

day living. Luggage typically functions as a portable

closet and chest of drawers. It follows that a person

could justifiably maintain a substantially higher

expectation of privacy in his personal luggage than

in a paper bag.

The panel concluded (Pet. App. 136a; emphasis in

original) :

Because a paper bag’s general vulnerability sug-

gests no reasonable expectation of privacy after its

seizure * * * and because the police justifiably believed

that this paper bag was not being used to store per-

sonal items, the police lawfully could open it with-

out violating Ross’s fourth amendment rights.

3. Acting upon respondent’s suggestion, the court of

appeals granted rehearing en banc. In an opinion joined

by seven of its members, the majority of the court re-

jected the panel’s conclusion that the warrantless search

of the unsealed paper bag was permissible (Pet. App.

la-27a).? Although the majority agreed that respond-

ent’s car was properly stopped and searched, and the

paper bag and leather pouch properly seized, it held that

“no ‘special exigencies’ justified opening the pouch or the

bag without a warrant” and that no other “established,

well-drawn exception” to the warrant requirement was ap-

plicable (Pet. App. 20a, 21a; footnote omitted).

Preliminarily, the court considered (Pet. App. 16a-19a)

whether a distinction could be drawn between the situ-

ations in Arkansas v. Sanders, supra, and United

20n rehearing en banc the government did not challenge the

panel’s ruling regarding the warrantless search of the leather

pouch on its merits. The government did argue that Arkansas v.

Sanders, 442 U.S. 753 (1979), should not have been applied retro-

actively to the search in issue, and that, for that reason, none of

the evidence should have been suppressed. The court of appeals

rejected that argument at the outset (Pet. App. 6a-10a), holding

Arkansas v. Sanders applicable retroactively, at least as to searches

subsequent to United States v. Chadwick, 433 U.S. 1 (1977). As is

explained in our petition (Pet. 5 n.1) we are doubtful of the sound-

ness of that ruling, but have chosen not to seek further review on

that point here.

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

suspicion amounting to probable cause was focused

upon the containers that were searched rather than the

vehicles in which they were placed, and the instant case,

where the officers’ suspicion focused on the vehicle itself

rather than any particular parcel contained in it. Read-

ing Sanders to disapprove the decision in United States v.

Finnegan, 568 F.2¢ $87 (1977), in which the Ninth Cir-

cuit had drawn such a distinction, the court rejected ap-

plication of the automobile search exception as a basis for

sustaining the search.

The court next considered (Pet. App. 19a-27a) whether

the rule of Chadwick and Sanders might be limited to

relatively substantial containers, and thus be inapplicable

to respondent’s paper lunch bag. Declining to adopt what

it termed “an unworthy container rule” (Pet. App. 23a),

the court perceived no distinction “between [respondent’s

zippered leather] pounch and [the paper] bag * * * that

makes theoretical or practice sense” (id. at 27a). The court

of appeals interpreted the footnote in Arkansas v.

Sanders, supra, 442 U.S. at 765 n. 13, which notes limita-

tions on the reach of that decision, as an exhaustive list-

ing of circumstances in which a warrantless search would

be permitted, embracing only containers whose contents

are in plain view, or whose appearance otherwise serves to

disclose their contents (Pet. App. 25a). The court stated its

view that an exception based upon the nature of, and

the conventional uses associated with, certain classes of

containers “would snare those without the means or the

sophistication to use worthy containers” and “would de-

stroy the coherence of a well-established, clear, eminently

manageable rule that, absent special necessity, a search

must rest upon a search warrant” (id. at 24a-25a;

footnote omitted). The en banc court accordingly con-

cluded that the contents of the paper bag, as well as those

of the leather pouch, should have been suppressed (id. at

27a).

Four members of the court dissented. Judge Tamm,

who had written the panel opinion, adhered to his orig-

inal reasoning and conclusions (described at pages 3-

5, supra) in an opinion (Pet. App. 28a-47a) joined

by Judges MacKinnon and Robb, each of whom wrote

separately as well (id. at 48a-49a, 50a).* Judge Wilkey

dissented separately (id. at 50a-117a) on the ground that

Arkansas v. Sanders, supra, should not be applied retro-

actively to the search at issue (see id. at 53a-77a).*

INTRODUCTION AND SUMMARY OF ARGUMENT

Just this past Term, in Robbins v. California, No. 80-

148 (July 1, 1981), this Court considered a question

closely related to that presented here. The question in

Robbins was whether, during a lawful warrantless search

of an automobile based upon probable cause, police may,

consistent with the Fourth Amendment, search sealed

packages wrapped in opaque plastic found in the luggage

compartment of the vehicle. The Court held the warrant-

less search unlawful, but there was no majority opinion.

In granting the petition for a writ of certiorari in the

instant case, the Court directed the parties to address the

* Stating that reasonableness is the constitutional standard” for

determining whether a search is consistent with the Fourth Amend-

ment (Pet. App. 48a-49a; emphasis in original), Judge MacKinnun

would have upheld the warrantless search of the leather pouch

as well as the paper bag and would accordingly have affirmed the

conviction. Judge Robb joined (id. at 50a) Judge Tamm’s dissent

with respect to suppression of the contents of the paper bag. He

joined in the judgment requiring suppression of the contents of

the pouch reluctantly, deeming that result compelled by this Court’s

decisions. However, he noted (ibid.) his view that

the right to search an automobile should include the right to

open any container found within the automobile, just as the

right to search a lawfully arrested prisoner carries with it the

right to examine the contents of his wallet and any envelope

found in his pocket, and the right to search a room includes

authority to open and search all the drawers and containers

found within the room.

Judge Wilkey would, however, have joined the majority as to

the issues on the merits, reluctantly concluding that Arkansas v.

Sanders controls this case (Pet. App. 82a, 95a-99a) but criticizing

both the decision in Sanders (id. at 77a-101a) and the exclusionary

rule itself (id. at 101a-117a). Judge MacKinnon joined in so much

of Judge Wilkey’s dissent as addressed the retroactivity issue (id.

at 48a).

question whether it should reconsider the decision in

Robbins. For the reasons detailed below, we respectfully

submit that the analysis employed by the plurality in

Robbins is mistaken, and that the Court’s holding con-

demning the warrantless search in Robbins was erro-

neous. Even if the Court adheres to the holding that

wrapped and sealed packages that meaningfully conceal

their contents may not be searched without a warrant,

however, it would not be reasonable to extend such a

holding to containers as flimsy as respondent’s paper bag.

Our submission that Robbins requires reconsideration

does not depend alone upon our view of the merits of the

question presented here and in that case. Rather, further

consideration of the decision in Robbins is compelled be-

cause the Court there failed to articulate principles gov-

erning the search of containers found in the course of

a lawful vehicle search in any fashion that commanded

the support of a majority of the Justices.“ In view of the

5 Indeed, following announcement of the decision in Robbins, one

court of appeals pointedly observed: “[W]e have no unequivocal

instruction from Robbins to guide us in our determination of

whether a grocery bag, which the record does not reveal as having

been sealed or closed,” could be searched without a warrant. Govern-

ment of the Virgin Islands v. Rasool, 657 F.2d 582, 592-593 (3d Cir.

1981); see id. at 595 (Adams, J., concurring). Other decisions

rendered after Robbins reflect continuing uncertainty as to the rule 5 78

to be applied. See, ¢.g., United States v. Mefford, 658 F.2d 588 (8th

Cir. 1981), r (upholding warrantless search of paper Pag): :

United States v. Weber, Nos. 80-1553 ete. (Ist Cir. Sept. 30,

1981), petition for rehearing en banc pending (holding, over a

dissent, that warrantless opening of a rolled up rainslicker was

impermissible) ; Sharpe v. United States, Nos. 79-5314 & 79-5315

(4th Cir. Sept. 4, 1981), petition for rehearing en banc pending

(holding, over a dissent, that warrantless search of burlap bags

believed to contain marijuana was impermissible); United States

v. Rivera, No. 80-1115 (5th Cir. Sept. 2, 1981), disposition of peti-

tion for rehearing stayed pending a decision in the instant case

(holding warrantless sampling of opaque plastic trash bags believed

to contain marijuana impermissible); cf. United States v. Cleary,

656 F.2d 1302 (9th Cir. 1981), petition for cert. pending, No.

81-953 (filed Nov. 20, 1981) (holding, over a dissent, that warrant-

less search of a canvas bag with a broken zipper and a gun butt

visible at its mouth was impermissible).

uncertainty left by the decision in Robbins, the importance

of the question presented for law enforcement purposes,

and the Court’s “institutional responsibility * * * to

harmonize [its] views on [such a] constitutional ques-

tion{] of broad application” (Robbins v. California,

supra, slip op. 8 n.4 (Powell, J., concurring)) we urge

the Court to reconsider the decision in Robbins.

Reduced to its essentials, the view of the Robbins

plurality and of the majority below was that the Fourth

Amendment should be construed to make all warrantless

searches of containers, of whatever kind or description,

unreasonable per se unless the contents of the container

are effectively in plain view, consent is given, or exigent

circumstances make it infeasible to secure a warrant. We

submit, however, that the general analytic approach ad-

vanced by Justice Powell in his concurrence in Robbins,

under which the need for a warrant is linked to ob-

jective factors indicating that the proposed search will

invade an area vested with substantial privacy attributes,

is more faithful to the policies of the constitutional pro-

vision and better serves the interests of individuals as

well as of society.

A. Neither the language nor the history of the Fourth

Amendment reflects any intention to require warrants

as a condition to a lawful search or seizure. Nevertheless,

the provision does require that searches and seizures be

reasonable, and this Court over the years has held that

various types of searches may not ordinarily be deemed

reasonable unless authorized by a warrant issued by a

neutral and detached magistrate and satisfying the pre-

requisites of the Warrant Clause of the Fourth Amend-

ment. The warrant requirement has been applied to

homes, offices, hotel rooms, mail, interception of oral com-

munications, and luggage. We have no quarrel here with

any of these holdings or with the policy judgments that

underlie them. What we do take issue with is the sweep-

ing extension of the warrant requirement embodied in the

court of appeals’ holding in this case, which casts Fourth

Amendment law adrift from its traditional moorings in

reasoned accommodation of individual privacy interests

and societal law enforcement interests.

B. It is our submission that the issue whether a search

of a container must be supported by a warrant in order

to be reasonable under the Fourth Amendment cannot be

decided without taking into account the magnitude of the

individual privacy interest invaded by the search. The

correctness of linking the warrant requirement to the

strength of the privacy interests affected by a search is

shown by an analysis of the functions served by the war-

rant in protecting the interests of the individual against

unreasonable governmental intrusion. Generally, the pro-

curement of a warrant accomplishes three useful pur-

poses:

1. A warrant serves to limit the scope of a search to

those items for which probable cause exists and those

areas in which there is reason to believe the items may

be located. In the context of a search of a seized con-

tainer, however, there is no risk of a general or overbroad

search, and thus a warrant is not necessary in order to

guard against that danger.

2. In at least some contexts, the warrant gives notice

to the individual whose premises and effects are to be

searched of the existence of authority to conduct the

search and of the permissible scope of the search. Again,

in the case of a seized container, the scope of the search

is not seriously in issue. And little is gained by assuring

an individual whose belongings are searched that a search

has been judicially authorized when his property has al-

ready been lawfully seized without such authorization.

8. For purposes of cases like the present one, the rele-

vant function performed by a warrant is as prophylaxis

against the police officer’s mistaken judgment that jus-

tification exists to undertake the proposed search. No

doubt there are occasions when a vigilant magistrate will

refuse to authorize a search that an overzealous police

officer would undertake if left to his own devices. But

this function of the warrant procedure simply cannot be

divorced from consideration of the importance of the

privacy interests implicated by a proposed search. An

officer who searches a house or taps a telephone with-

out probable cause has intruded unjustifiably into an

area to which our society attaches strong privacy in-

terests, causing a grave and largely irreparable injury.

If the prophylaxis of a warrant requirement avoids even

a relatively small number of unreasonable searches of

this nature, the personal security of the citizenry will

have been meaningfully advanced. In the context of

searches of containers such as respondent’s paper bag or

Robbins’ plastic wrapped parcel, however, the likely bene-

fits of a warrant are drastically reduced, since a mistaken

search, far from exposing intimately private matter, will

usually disclose nothing more than some items of recently

purchased merchandise or the like.

In sum, warrantless searches may be deemed unreason-

able to the extent that a mistaken or unjustified search

will expose to official view areas or items that tradition-

ally are accorded high privacy value by our society. But

as the privacy interests implicated by a particular type of

search diminish, so too does the reasonableness of insisting

upon resort to the prophylaxis afforded by the warrant

procedure.

If we are correct that the applicability of the warrant

requirement is in substantial part a function of the

magnitude of the privacy interest generally implicated by

the type of search to be undertaken, then it is beyond

serious dispute that no warrant was required to search

respondent’s paper bag. A paper bag is a type of con-

tainer that is only rarely used to transport personal ef-

fects of a significantly private character, and that by its

nature is poorly designed to shield its contents from dis-

closure to others, especially if it has come into the posses-

sion of a third party.

C. Consideration of the applicability of a warrant

requirement to a particular class of searches requires not

only an evaluation of the benefits likely to be derived

from such a requirement, but also a weighing of the costs

that will thereby be imposed. If, for example, the cost is

a substantial risk that evidence will be destroyed (i.e.,

exigent circumstances), it is universally recognized that

the warrant procedure may reasonably be foregone. But

even in the absence of exigent circumstances, it is un-

realistic to suppose that the warrant procedure is cost-

free. At a minimum, it will ordinarily involve several

hours of police officers’ time to prepare a warrant ap-

plication and present it to a magistrate—time that could

otherwise be spent patroling a beat or performing other

law enforcement functions. This cost may be well worth

incurring when the proposed search implicates substan-

tial individual privacy interests; it is far harder to

justify when such interests are not likely to be at stake.

A warrant requirement for container searches will also

often impose costs on the owner of the property to be

searched that substantially outweigh the benefits he is

likely to derive from resort to the warrant process.

Ordinarily, when the police have probable cause to search

a container found in an automobile or carried by some-

one on a public street, they will by the same token have

probable cause to arrest the possessor of the container.

From the standpoint of the person from whom a con-

tainer has been seized, particularly one innocent of

wrongdoing, it would undeniably seem a lesser intrusion

to have the search conducted on the spot than to be ar-

rested and held for several hours while a warrant is

sought. It is not a satisfactory answer to say that such

an individual may avoid this dilemma by consenting to an

immediate search. A police officer is not obliged to ac-

cept. such a consent, which is after all subject to dispute

in a suppression hearing or a tort action, and the officer

would indeed be imprudent in doing so whenever a serious

crime is under investigation and probable cause appears

to be strong.

D. Finally, it has been suggested by the court below

and the Robbins plurality that a rule requiring warrants

for all container searches will provide a valuable “bright

line” test that will help officers in the field to know

clearly where their duty lies. We question whether this

virtue alone would justify characterizing an otherwise

reasonable search as being violative of the Fourth Amend-

ment. But in any event, in this context, the suggestion

that broadening the reach of the warrant requirement

will in fact provide clear guidance to the officer in the

field is unfounded. Rather, the decision below will simply

relocate the boundary of uncertainty to such items

as open shopping or grocery bags, rolled-up newspapers

or clothing, pockets in items of apparel, and the like.

The search of respondent's paper bag was also justi-

flable because it formed an integral part of an otherwise

lawful warrantless search of his automobile. The estab-

lished “automobile search“ exception, which serves as the

functional equivalent of a warrant to search an auto-

mobile, should be construed to authorize searches equal in

scope to those permissible under a warrant to search an

automobile. As no separate warrant would be required to

search a container found in a warrant-authorized search

of a car (or a house), no warrant should be required in

the circumstances of this case, either. In the setting of

this case, recourse to a magistrate for a determination of

probable cause to search the respondent’s paper bag

would have been an essentially sterile exercise, for law

enforcement officers had by that time already acted

upon their determination that probable cause existed by

searching the automobile. Unlike the circumstances con-

sidered in United States v. Chadwick, supra, and Arkan-

sas V. Sanders, supra, in this case there was probable

cause to search the automobile as a whole. The determina-

tion that there was probable cause to search the container

was simply a corollary of the earlier conclusion. The

conclusion that the contraband sought might lie in the

paper bag involved only a rudimentary detective’s in-

ference, rather than a judgment concerning the fine

points of Fourth Amendment law. Accordingly, recourse

to a magistrate at this juncture was not required.

In any event, the imposition of a warrant require-

ment respecting containers seized from an automobile

is logical only when the container involved has substan-

tial privacy attributes which rise above the privacy ex-

pectations invested in the automobile itself. Respond-

ent’s paper bag, however, had no such qualities. In-

deed, an unsealed paper bag cannot reasonably be relied

upon to segregate its contents from items lying loose

in an automobile and does not convey any expectation

of heightened privacy in its contents. The use of such

a container renders unreasonable any subjective expecta-

tion that privacy will be maintained after it is separated

from its owner. Accordingly, no warrant was required

to effect the search of respondent’s paper bag as part

of an otherwise lawful search of the automobile in which

it was located.

ARGUMENT

I. A WARRANT IS NOT REQUIRED TO RENDER

REASONABLE A PROBABLE CAUSE SEARCH OF

A CONTAINER, UNLESS THE CONTAINER IS OF

A KIND CONVENTIONALLY REGARDED AS EM-

BODYING A SUBSTANTIAL PRIVACY INTEREST

While the express language of the Fourth Amend-

ment does not require police to obtain warrants in any

circumstances, this Court has relied upon the reasonable-

ness requirement of that provision in holding that “nor-

mally searches of private property [must] be performed

pursuant to a search warrant issued in compliance with

the Warrant Clause.” Arkansas v. Sanders, swpra, 442

U.S. at 758.° Accordingly, on several recent occasions

*As an historical matter, it seems relatively clear that the

Fourth Amendment was not designed to ensure or understood to

require that searches generally be based upon warrants. The pro-

vision was adopted against the background of widespread opposi-

tion, both in Great Britain and in the American colonies, to the

use of general warrants, which authorized the search of any

dwelling and the arrest of any person, without any showing of

probable cause. N. Lasson, The History and Development of the

Fourth Amendment to the United States Constitution 87, 48-44

(1987). In addition, the former colonists reacted to the despised

the Court has held that absent exigent circumstances,

consent, or circumstances constituting a proper search

incident to arrest, a warrant is required before police

may search a particular kind of container, even though

they have probable cause to believe that it contains con-

traband or evidence of a crime, and even though the

container is lawfully seized from a motor vehicle. Robbins

v. California, supra (securely wrapped and sealed par-

cel); Arkansas V. Sanders, supra, 442 US. at 762-766

(suitease); United States v. Chadwick, supra, 433 U.S.

at 11-13 (double-locked footlocker). It is our submission,

of course, that none of the foregoing cases is controlling

here. We also urge that to the extent the plurality opin-

ion in Robbina v. California, supra, extends the holdings

of Chadwick and Sanders (see Robbins v. California,

supra, slip op. 1 (Powell, J., coneurring)), it should be

writs of assistance, which were open ended general search warrants

permitting royal customa officials to enter any dwelling. Ja at 54.

The historical record reveals that “cur comatitutional fathers were

not concerned about warrantless searches, but about overreaching

warrants.” T. Taylor, Two Studies in Constitutional Interpretation

41 (1960). Indeed, the original draft of the Fourth Amendment was

aimed only at controlling use of overbroad warrants. See 1 Cong.

Deb. 78% (Gales & Seaton ed, 1834). A modest change of words

responsible for the version which became part of our Constitution

crept into the Amendment only by seeming inadvertance. See

N. Lassen, supra, at 101-102; Fraenkel, Concerning Searches and

Seteures, 24 Harv. L. Rev. 361, 266 30 (1921). The language

ultimately adopted, of course, does require that all searches be

judged by a standard of reasonableness, but the background sug-

genta that no change was intended in the then-settled rule that not

every warrantless search was per se unreasonable. Indeed, aa this

Court long ago noted (nee Carroll v. United States, 267 U.S. 122,

149-15% (1926), a diatinetion between searches of houses, for

which a warrant was required, and searches of goods in transit,

which were not so protected, was recognized in the Acta of Congress

enacted contemporaneously with the adoption of the Bill of Rights.

Bee Act of July 31, 1789, ch. 5, Bection 24, 1 Stat. 42; see ale Act of

Mar. 3, 1815, ch. 94, Section 2, 3 Stat. 242; Act. of July 14, 1866, ch.

201, Section 3, 14 Stat. 178. The 1415 statute authorizing warrant-

lens searches was signed into law by President James Madison, who

had proposed the language that ultimately formed the basis for the

Fourth Amendment.

reconsidered. Before turning to the particular circum-

stances of this case, however, we think it appropriate to

review the underlying considerations that in our judg-

ment inform this Court’s Fourth Amendment decisions.

A. A Warrantless Probable Search Is Reasonable

Under The Fourth Amendment When The Social

Cost Of Requiring This Additional Procedure Out-

weighs The Benefits That Would Be Conferred

As noted above, this Court has stated in various con-

texts that a warrant is presumptively required before

a search of private property may be deemed reasonable

under the Fourth Amendment. The warrant require-

ment, however, is not absolute. Exceptions have been

recognized “where it was concluded that the public in-

terest required some flexibility in the application of the

general rule,” particularly where “the societal costs of

obtaining a warrant * * * outweigh the reasons for prior

recourse to a neutral magistrate.” Arkansas v. Sanders,

supra, 442 U.S. at 759; see also Camara v. Municipal

Court, 387 U.S. 523, 587 (1967); ef. Terry v. Ohio, 392

U.S. 1, 27 (1968); United States v. Brignoni-Ponce, 422

U.S. 878, 880 (1975). Several considerations underlie the

recognition that a warrant is not required in certain cir-

cumstances. First, the exigencies of the particular situa-

tion may make proceeding with a warrantless search

imperative. Coolidge v. New Hampshire, 408 U.S. 443,

455 (1971). For example, where the police are in hot

pursuit of a fleeing criminal, they may enter a private

dwelling to search for him as well as for evidence and

fruits or instrumentalities of the crime. Warden v.

Hayden, 387 U.S. 294, 299 (1967); see also Payton v.

New York, 445 U.S. 578, 583 (1980)." Similarly, when

Although the point is often overlooked, the exigent circum-

stances exception to the warrant requirement is merely an appli-

cation of the general balancing test. It is not inherently incon-

ceivable that a warrant be required in such situations; rather,

the Court has determined that society's interests in law enforce-

ment outweigh the gains to privacy interests from recourse to the

an arrest is made, it is reasonable for the arresting

officer to conduct an immediate search of the person

arrested as well as the area within his immediate con-

trol in order to remove any weapons that he might use

in order to effect his escape, and to seize evidence in

order to prevent its concealment or destruction. Chimel

v. California, 395 U.S. 752, 763 (1969). And, for iden-

tical reasons, the police may, incident to the arrest of

an occupant of an automobile, search the passenger com-

partment of the vehicle, as well as containers within it,

for weapons or contraband. New York v. Belton, No.

80-828 (July 1, 1981), slip op. 6.

Exigent circumstances also have been cited as one basis

for permitting warrantless searches of automobiles stopped

by the police along the highway. As the Court explained in

Chambers v. Maroney, 399 U.S. 42, 51 (1970), “the car

is movable, the occupants are alerted, and the car’s con-

tents may never be found again if a warrant must be

obtained. Hence an immediate search is constitutionally

permissible.” See Arkansas v. Sanders, swpra, 442 U.S.

at 761; United States v. Chadwick, supra, 433 U.S. at

12; Coolidge v. New Hampshire, supra, 403 U.S. at 460;

Cooper v. California, 386 U.S. 58, 59 (1967); Carroll v.

United States, 267 U.S. 182, 153 (1925).

But the so-called “automobile search” exception does

not require a demonstration of exigent circumstances.

A second rationale for dispensing with a warrant—the

owner’s diminished expectation of privacy—supports

“ ‘warrantless searches of vehicles“ in cases in which

the possibilities of the vehicle’s being removed or evidence

in it destroyed were remote, if not nonexistent’” (United

States v. Chadwick, supra, 433 U.S. at 12, quoting Cady

v. Dombrowski, 418 U.S. 488, 441-442 (1973)), As the

Court explained in United States v. Chadwick, supra,

warrant procedure. Accordingly, while probable cause is still

ordinarily required, a warrantless search is a reasonable search in

those instances,

433 U.S. at 12, quoting Cardwell v. Lewis, 417 U.S.

583, 590 (1974) (plurality opinion) :

One has a lesser expectation of privacy in a motor

vehicle because its function is transportation and

it seldom serves as one’s residence or as a repository

of personal effects? *. It travels public thorough-

fares where both its occupants and its contents are

in plain view.

As a result, the owner’s privacy interests in the vehicle’s

interior are thought to be adequately protected by the

requirement that any search be supported by probable

cause or other reasonable justification—and by allowing

the determination of reasonableness to be made in the

first instance (subject to later judicial review) by the

searching officers. See, e. g., Cady v. Dombrowski, supra,

413 U.S. at 448 (warrantless search of impounded ve-

hicle reasonable because necessary to recover firearm) ;

Chambers v. Maroney, supra, 399 U.S. at 52 (warrant-

less search of automobile at police station reasonable be-

cause based upon probable cause). Such privacy inter-

ests are deemed insufficiently substantial to necessivate

the added protections secured by the warrant procedure.

See United States v. Chadwick, supra, 433 U.S. at 13.“

In holding that the opening of the paper bag found

in the trunk of respondent’s car violated the Fourth

Reduced expectations of privacy also justify warrantless ad-

ministrative searches of pervasively regulated businesses. See Dono-

van V. Dewey, No. 80-901 (June 17, 1981); United States v. Bis-

well, 406 U.S. 311, 316 (1972) ; Colonnade Catering Corp. v. United

States, 397 U.S. 72, 74, 77 (1970). Just last Term in Donovan v.

Dewey, supra, slip op. 4, the Court recognized that the warrant

requirement is not to be applied in an indiscriminate fashion to

all property, irrespective of its character, stressing that the ex-

pectation of privacy that the owner of commercial property enjoys

in such property differs significantly from the sanctity accorded

an individual’s home * * *.” Moreover, in explaining the “per-

vasively regulated businesses” exception to the warrant require-

ment, the Court noted (slip op. 5-6) that persons operating such

businesses are necessarily aware of the possibility of inspection,

and their justifiable expectations of privacy are accordingly limited.

Amendment, the court below concluded that none of the

recognized exceptions to the warrant requirement was

applicable here (Pet. App. 21a). The court of appeals

further declined to “delineate a new” exception applicable

in the circumstances of this case (id. at 23a-27a). It

is our contention, however, that the policies which under-

lie the established exceptions to the warrant requirement

lead to the conclusion that the presence of a warrant

is not necessary to establish reasonableness, under the

Fourth Amendment, of a search of a paper bag or other

insubstantial container that has been lawfully seized

based upon probable cause to believe that it contains

contraband or evidence of a crime. See South Dakota

v. Opperman, 428 U.S. 364, 382-383 (1976) (Powell, J.,

concurring).

The issue in this case, as in any case involving the

applicability of the warrant requirement, is not the level

of justification that is required to support a govern-

mental search of private property or personal effects.

If, in order to be reasonable, a search must be supported

by probable cause to believe that it will uncover contra-

band or evidence of a crime, that justification depends

upon the facts known to the officer, and it is not increased

or diminished by the action of the magistrate in response

to a warrant application. The warrant is thus a proce-

dural protection that does not affect the substantive jus-

tification for the search. Moreover, the question in any

warrant case is not whether the justification for a pro-

posed search or seizure shall be subject to judicial re-

view, but simply the timing of that review. The fore-

going is not meant to denigrate the importance and

utility of the warrant procedure as a protection against

unjustified searches and seizures in many contexts. A

search that implicates substantial privacy interests ought

not be undertaken without the benefit of reasonable pro-

cedural protections for the individual interests involved.

But the warrant procedure is not cost-free, and as the

advantages it offers diminish, so too does the basis for

labeling a substantively justified search unreasonable be-

cause of a failure to utilize the warrant procedure.

The Court has previously recognized that exceptions to

the warrant requirement are to be fashioned when “the

societal costs of obtaining a warrant * * * outweigh the rea-

sons for prior recourse to a neutral magistrate.” Arkansas

v. Sanders, supra, 442 U.S. at 759. In striking that bal-

ance we suggest as a model for analysis the test employed

to determine whether particular procedural safeguards

satisfy the requirements of due process—an inquiry

that has a nature and purpose substantially similar to the

inquiry into the desirability of the warrant procedure to

protect individual Fourth Amendment interests. As stated

in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), con-

sideration of three factors is required:

First, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional

or substitute procedural safeguards; and finally, the

Government’s interest, including the function in-

volved and the fiscal or administrative burdens that

the additional or substitute procedural requirement

would entail.

In order to strike this balance it is necessary first to

appreciate the interests that are ordinarily served by

requiring that a warrant be obtained.

B. The Marginal Benefit Of Requiring That A Warrant

Be Secured Prior To Search Of A Low-Privacy

Container Lawfully Seized By Police Is Outweighed

By The Costs To Society, And To The Individual

Whose Belongings Are Seized, Of Requiring This

Procedure

1. Traditionally, three basic functions have been as-

cribed to the requirement that a warrant be obtained

prior to undertaking a search of private property. First,

as explained by Justice Jackson for the Court in Johnson

v. United States, 333 U.S. 10, 14 (1948) (footnote

omitted) :

Its protection consists in requiring that * * * in-

ferences [from evidence relied upon to establish prob-

able cause for a search] be drawn by a neutral and

detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise

of ferreting out crime.

Second, it is thought that a warrant tends to limit the

scope of the search to bounds commensurate with

the probable cause underlying its issuance. United

States v. Chadwick, supra, 433 U.S. at 9. Third, the

presence of a warrant serves to assure persons subjected

to a search “of the lawful authority of the executing

officer, his need to search, and the limits of his power

to search.” United States v. Chadwick, 483 U.S. at 9;

Marshall v. Barlow’s, Inc., 486 U.S. 307, 323 (1978);

Camara v. Municipal Court, supra, 387 U.S. at 532.

As Judge Wilkey explained in his dissenting opinion

below the policies ordinarily furthered by the warrant

requirement, for instance in the search of a home, have

little if any application to the search of a container

lawfully seized upon probable cause in a warrantless

search of an automobile (Pet. App. 83a-85a; footnotes

omitted; emphasis in original):

When a container is seized from an automobile

after a lawful warrantless search of a car, however,

these advantages largely evaporate. First, in the

event a warrant does not issue for the containers

seized, the level of intrusion is reduced modestly, if at

all. The car’s occupants already have been stopped,

detained and deprived of control over the seized

container. In all likelihood, they also have been

arrested, for in most cases probable cause to search

for contraband will also provide probable cause to

arrest its possessors. Should they be arrested, the

car’s occupants will in addition be subject to searches

of their persons and of the area within grabbing

distance of them. At this point, if a warrant fails to

issue, the additional intrusion they have been spared

is surely minimal compared with that which has gone

before. By contrast, when a warrant does not issue

for the search of a dwelling, the householder is

spared even knowledge of the proposed search.

A warrant requirement for containers, moreover,

does not define the area to be searched and the ob-

jects to be seized; the car has already been searched

and the containers seized by the time the warrant

issues. Just as obviously, the warrant requirement

for searches of containers found in a car does not

serve the function of reassuring the occupants of

the officer’s lawful purpose and authority. After they

have been stopped, searched, deprived of control

over their property, and taken to the police station,

the moment for reassuring the car’s occupants of

the lawful purpose of the police long since will have

passed.

A warrant requirement for containers thus pro-

vides only a small fraction of the protection assured

by the warrant requirement for dwellings. How little

is left is demonstrated by considering what value a

warrant would be if the same rules applied to the

search of houses as to the search of cars. Were the

warrant requirement for houses to parallel that for

cars, officers with probable cause would be authorized

to enter a house without producing a warrant, to

range free throughout the house while examining

its contents, to open cupboards, closets and anything

else immovable, then to scoop up any suspicious con-

tainers for removal to the stationhouse, probably

with the householder himself in tow. After con-

siderable delay, the officers would then triumphantly

present the startled householder with a warrant

authorizing the opening of the containers seized.

Innocent householders could be expected to consider

this belated appearance of a warrant a nearly useless

afterthought. It is hard to see why drivers and pas-

sengers should react otherwise.

See also South Dakota v. Opperman, 428 U.S. 364, 382-

384 (1976) (Powell, J., concurring).

These observations are fully applicable to any situa-

tion in which a container has been seized without a

warrant on the basis of an officer’s determination that

probable cause exists. The only interest advanced by

requiring recourse to a magistrate in such cases is pro-

tection against misjudgments by overzealous officers re-

garding the existence of a reasonable basis in the avail-

able facts to justify the search.“ In some proportion of

cases, the interposition of a neutral and detached judicial

officer will serve to prevent an unjustified intrusion.““

Where the proposed search is of items or areas generally

recognized as enjoying substantial privacy attributes, it

is reasonable to insist upon a warrant because of the

social judgment that the costs of an unjustified search

of such a high privacy area are unacceptable. The

prophylaxis provided by the warrant requirement, even

if only a relatively small number of unreasonable searches

are thereby avoided, is deemed of sufficient value to

justify the conclusion that warrantless searches are un-

reasonable in such circumstances.

The decisions in Chadwick and Sanders are entirely

consistent with this understanding of the relationship

of the warrant requirement to the reasonableness cri-

terion of the Fourth Amendment. Sufficiently strong

individual privacy interests were thought to be asso-

ciated with luggage that an important purpose was

served by the warrant procedure in guarding against

inadequately justified searches. This justification loses

its force, however, when transposed to the context of

paper lunch bags such as that seized from the trunk

As Justice Rehnquist observed in his dissent in Robbins, supra

(slip op. 3), the premise that the warrant requirement provides con-

sistent and meaningful protection to persons whose property may

be subject to search is itself open to question. This Court has

not interpreted the Fourth Amendment to require that warrants

be issued by a lawyer or a judge (see Shadwick v. City of Tampa,

407 U.S. 345 (1972)), and it has acknowledged that the presence

of a warrant secured from a magistrate after a hearing does not

necessarily “suffice to discourage lawless or reckless misconduct”

by police. Franks v. Delaware, 438 U.S. 154, 169 (1978).

10 As noted by Judge Wilkey, the incremental value of that safe-

guard following a seizure of the property is limited.

11 Luggage was described in Sanders as “a common repository for

one’s personal effects, and therefore * * * inevitably associated

with the expectation of privacy” (442 U.S. at 762).

of respondent’s car, or even the plastic-wrapped parcel

in Robbins. As we explain below (pages 29-31) such

containers support only a limited expectation of pri-

vacy. The costs to Fourth Amendment interests as-

sociated with an officer’s mistaken assessment of probable

cause as to such a container are accordingly substantially

less than those associated with an unreasonable intru-

sion into a home or even into luggage or some other

conventional repository of personal effects. For example,

if the officer in this case had erred in his judgment

that the small paper lunch bag in the trunk of re-

spondent’s automobile contained illicit drugs, the likely

result is that he would have discovered that it contained

recently purchased merchandise or perhaps respondent’s

next meal.” Although it is not to be doubted that the

owner has some privacy interest in even these items,

it is equally apparent that this interest is simply not

comparable to that which attaches to the contents of

homes, offices, private communications, or even luggage,

and which has prompted the Court to extend to all of

those areas the protections of the warrant procedure.

12In Robbins v. California, supra, the plurality noted (slip op.

7-8 n.2) the comments of the dissenting judge in the California

Court of Appeal respecting the container there at issue:

For all that I see, it could contain books, stationery, canned

goods, or any number of other wholly innocous items which

might be heavy in weight. In fact, it bears a remarkable re-

semblance to an unlabelled carton of emergency highway flares

that I brought from a store and have carried in the trunk of

my own automobile.

People v. Robbins, 108 Cal. App. 3d 34, 44, 162 Cal. Rptr. 780, 785

(1980) (Rattigan, J., dissenting). These comments were offered to

show that the exterior of the package in question did not, contrary

to the view of the California court majority, reveal its contents.

However, they serve even more tellingly to demonstrate that if the

California patrolman’s judgment that marijuana was inside the

package had proven unfounded, Mr. Robbins would not have suffered

the kind of intrusion into highly private possessions for which the

prophylactic requirement of advance judicial authorization is really

valuable.

2. On the other hand, the cost of requiring procure-

ment of a warrant to achieve the marginal benefits of

minimizing these limited intrusions would be inordinately

high. As Justice Powell explained in his concurring opin-

ion in Robbing (slip op. 5) :

Confronted with a cigar box or a Dixie cup in the

course of a probable cause search of an automobile

for narcotics, the conscientious policeman would be

required to take the object to a magistrate, fill out

the appropriate forms, await the decision, and finally

obtain the warrant. Suspects or vehicles normally

will be detained while the warrant is sought. This

process may take hours, removing the officer from his

normal police duties. Expenditure of such time and

effort, drawn from the public’s limited resources

for detecting or preventing crimes, is justified when

it protects an individual’s reasonable privacy in-

terests. In my view, the plurality’s requirement

cannot be so justified. The aggregate burden of

procuring warrants whenever an officer has prob-

able cause to search the most trivial container may

be heavy and will not be compensated by the ad-

vancement of important Fourth Amendment values.

Affording the limited privacy interest in the contents of

a paper bag (or other containers not “inevitably asso-

ciated” with substantial privacy values) the added pro-

tection of the warrant procedures does not, we submit,

justify removing a police officer from other duties while

he or she engages in the frequently lengthy and burden-

some task of securing a warrant.

Equally important, the warrant requirement threatens

injury to other Fourth Amendment interests of the

owners of such parcels. As Judge Wilkey noted in his

dissent (Pet. App. 91a-92a), the officer’s belief that

probable cause exists to seize and search a container

found in someone’s possession in an automobile or a

public place usually also gives rise to probable cause to

arrest the possessor of the container. For the innocent

person whose bag or parcel does not in fact contain

contraband or evidence of a crime, the injury to Fourth

Amendment liberty interests entailed in a custodial ar-

rest while a warrant is sought would ordinarily be con-

siderably more serious than the injury arising from an

immediate warrantless search, which may result in

prompt exoneration of the individual, a speedy return

of his property, and the freedom to proceed about his

business forthwith.”

In Arkansas v. Sanders, supra, 442 U.S. at 764 n.12,

the Court suggested that, whenever the owners of con-

tainers suspected of containing contraband find unac-

18 The universe of cases in which an officer has seized a container

believing he has probable cause to do so and intending to search

it may be usefully divided tnto four categories:

(1) The officer is correct in his belief that probable cause

exists, and in fact the container has in it contraband or evi-

dence of a crime. In such a case, while an immediate war-

rantless search would not avoid arrest and incarceration, the

failure to obtain a warrant has turned out to be harmless.

(2) The officer is correct in his belief that probable cause

exists (so that a warrant would issue if one were sought),

but the contents of the container were in fact innocent. In

this case, too, the failure to procure a warrant is harmless,

since the search would occur in any event, but the warrant

procedure will have caused a serious added and unnecessary

burden for the suspect.

(3) The officer is mistaken in his belief that probable cause

exists, but the magistrate makes the same error. In this situa-

tion recourse to the warrant procedure will have failed to

afford protection to the suspect’s privacy interests, while still

exacting a substantial cost from the detention while the war-

rant is procured.

(4) The officer is mistaken in his belief that probable cause

exists, and the magistrate refuses to authorize a search of

the seized container. Only in this class of cases (the incidence

of which is speculative) will the warrant procedure have per-

formed a useful function in protecting Fourth Amendment in-

terests. Even here, however, the extent of the injury suffered

by an immediate unjustified search will usually be slight in

the case of low-privacy containers, so that the protection af-

forded by the warrant procedure will often prove unwelcome to

the individual whose property and perhaps person have been

detained while the warrant was sought.

ceptable the inconvenience of detention while the police

obtain a search warrant, the inconvenience may be

avoided by simply consenting to a search. While this ap-

pears at first blush to be a satisfactory response to the

concern that a warrant requirement may substantially

burden the interest of suspects (especially innocent ones)

in freedom from a possibly lengthy period of arrest while

a warrant is sought, closer analysis discloses serious

problems. Because the suspect who consents to a search

waives constitutional protections guaranteed by the

Fourth Amendment, the consent must be given freely and

voluntarily. See Schneckloth v. Bustamonte, 412 U.S. 218,

249 (1973). The question whether a consent to search

was voluntary or was the product of duress “is a ques-

tion of fact to be determined from the totality of all the

circumstances.” Id. at 227. Factors that are pertinent

to this determination include not only the conduct of the

police—whether the suspect was threatened, placed in

custody, and/or advised of his right to refuse to consent—

but may also include some factors that are not necessarily

apparent to the officer—including the suspect’s knowl-

edge of his right to refuse, his age, intelligence, educa-

tion, and state intoxication. See, e. g., id. at 226 (rele-

vance of lack of education and low intelligence) ; United

States v. Mendenhall, 446 U.S. 544, (558-559 (1980)

(opinion of Stewart, J.) (knowledge of right to refuse is

“highly relevant” to determination of consent; suspect’s

race and education also relevant factors). Ironically, spe-

cial difficulties in judging the voluntariness of consent may

be created by the incentive to consent in cases such as this:

i.e., that the alternative to giving consent is the incon-

venience and stigma (especially for the innocent persons)

associated with arrest, booking, and incarceration (see

Pet. App. 93a).

A police officer is under no obligation to proceed with

an immediate search simply because the suspect has con-

sented to it. In view of the difficulty of determining on the

spot whether consent is voluntarily given in the constitu-

tional sense and the risk that even a consent that is in fact

voluntary will not be found to have been so at a sub-

sequent judicial hearing, it is risky law enforcement

practice to rely upon a putative consent that may later

be found invalid, thereby rendering the search unlawful

even though supported by probable cause. Thus, absent

exigent reasons for proceeding upon a consent (which,

of course, would themselves obviate the need for a war-

rant) consent will frequently prove to be an illusory al-

ternative to the substantial intrusion of arrest. In any

event, law enforcement officers should not be required to

rely upon consent as the sole basis for warrantless

searches of insubstantial containers that have been law-

fully seized.

Given the available alternatives, an immediate search

of a seized container based upon the officer’s own assess-

ment of probable cause would usually constitute a lesser

intrusion on the owner’s privacy interests than arrest and

detention pending application for a search warrant. See

Chambers v. Maroney, supra, 399 U.S. at 51-52. The

costs of requiring a warrant to search containers which

do not exhibit substantial privacy expectations are ac-

cordingly disproportionate to whatever incremental pri-

vacy protection might be achieved by imposition of such

a requirement. For purposes of protecting the residual

privacy interest that does attach to the contents of

paper bags and similar containers, it is sufficient that

such searches must be based upon the police officer’s pos-

session of probable cause, and that his determination of

that question is subject to full post-search judicial scru-

tiny.“ *

We recognize that the choice between detention and

an immediate search is not squarely presented where

there are independent grounds for arresting an in-

dividual apart from the suspected contents of the con-

1 Here, of course, it is undisputed that the search was supported

by probable cause (see Pet. App. 19a-20a n.22). When reasonable

justification for a search was lacking at the outset, a civil damages

remedy may be available. See Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395 (1971).

tainer.“ The rule, however, should be based upon the gen-

eral nature of the situations it covers. Moreover, as is

explained above (pages 21-23, supra), a warrant serves

its usual functions weakly, if at all, whenever the owner

of a seized container has been arrested. In such circum-

stances, not only has the owner’s automobile been stopped

and searched, and the container seized, but the owner and

the entire passenger compartment of the automobile and

any container found therein may be searched without a

warrant as an incident to the arrest. See New York v.

Belton, supra, slip op. 6-8; United States v. Robinson, 414

U.S. 218 (1973); Chimel v. California, 395 U.S. 752

(1969). Moreover, an inventory search of the respondent’s

automobile would have been permissible, so long as it was

undertaken pursuant to uniform police practices and was

not a pretext for an investigatory search. South Dakota

v. Opperman, 428 U.S. 364, 376 (1976). Accordingly,

when independent grounds for an arrest exist, the addi-

tional intrusion effected by the search of the container is

especially modest. When the container in question does

not support substantial privacy expectations capable of

surviving separation from its owner, the policies of the

Fourth Amendment are little, if at all, advanced by im-

position of a warrant requirement.

C. Most Bags And Parcels Cannot Support A Justifi-

able Expectation Of A Substantial Degree Of

Privacy

In United States v. Chadwick, supra, 433 U.S. at 12-

13, the Court recognized that the “automobile exception”

to the warrant requirement rests in part upon the lower

expectation of privacy attached to a motor vehicle, as

compared to homes and offices. Similarly, in Arkansas v.

Sanders, supra, 442 U.S. at 761, the Court noted that the

1 Respondent was arrested upon discovery of a gun and am-

munition. He was charged with weapons law violations under

District of Columbia and federal law (D.C. Code Ann. § 22-8204

(1978) ; 18 U.S.C. App. 1202 (a); see Pet. App. 6a, 128a) but was

not convicted on these counts.

“automobile exception” rests in part upon “the con-

figuration, use, and regulation of automobiles [which]

often may dilute the reasonable expectation of privacy

that exists with respect to differently situated property.”

In each case, however, the Court declined to extend the

automobile exception to the luggage involved, or to fashion

a comparable exception applicable to such containers,

stressing that “luggage is a common repository for one’s

personal effects, and therefore is inevitably associated with

the expectation of privacy.” Id. at 762, citing United

States v. Chadwick, supra, 483 U.S. at 13.

On the other hand, the Court made it clear in Sanders,

(442 U.S. at 764 n.13) that “[nJot all containers and

packages found by police during the course of a search

will deserve the full protection of the Fourth Amendment,”

offering by way of example

containers (for example a kit of burglar tools or a

gun case) [which] by their very nature cannot sup-

port any reasonable expectation of privacy because

their contents can be inferred from their outward

appearance. Similarly, in some cases the contents

of a package will be open to “plain view,” thereby

obviating the need for a warrant. * * * There will

be difficulties in determining which parcels taken

from an automobile require a warrant for their

search and which do not. Our decision in this case

means only that a warrant generally is required be-

fore personal luggage can be searched * * *.

Id. at 764-765 n.13."* The Court’s caveat left the status of

containers other than personal luggage “hanging in

1% Both the court below (see Pet. App. 25a) and the plurality

in Robbins (slip op. 6-7) concluded that the exceptions listed by

the Court in Sanders—containers whose contents are in plain view

and those whose contents are inferrable from their outward ap-

pearance—constituted an exhaustive listing of exceptions to the

warrant requirement, rather than merely examples. To say the

least, that seems a strained interpretation of the Court's lan-

guage in Sanders. If the listing in Sanders were intended to

be all-encompassing it would hardly follow that “[t]here will be

difficulties in determining which parcels taken from an automobile

limbo” (id. at 768 (Blackmun, J., dissenting)) . Prior to

this Court’s decision in Robbins, the lower courts had shoul-

dered the task of determining which kinds of containers

and packages activate the warrant requirement of the

Fourth Amendment. Invalidation of warrantless probable

cause searches was generally reserved for searches of con-

tainers that normally function as repositories for per-

sonal effects or papers, or that represent the functional

equivalent of luggage, such as suitcases, briefcases,

purses, duffle bags, knapsacks, and gym bags.“ With the

exception of the decision by the court below sitting en

banc, however, and the decision in United States v.

Moschetta, 646 F. 2d 995, 958-959 (5th Cir. 1981), petition

for cert. pending sub nom. United States v. Spieler, No.

81-908 (filed Nov. 18, 1981) which relies directly upon

the opinion in the instant case, the courts of appeals gen-

erally declined, prior to Robbins, to extend the warrant

requirement to paper and plastic bags and packages."* As

require a warrant for their search * *,” or that “[o]ur decision in

this case means only that a warrant generally is required before

personal luggage can be searched * *.” Arkansas v. Sanders, 442

U.S. at 765 n. 18.

17 See, ¢.g., United States v. Presler, 610 F.2d 1206 (4th Cir.

1979) (briefcases); United States v. Miller, 608 F.2d 1089 (5th

Cir. 1979) (portfolio); United States v. Montano, 618 F.2d 147

(6th Cir. 1980) (suitcase); United States v. Meier, 602 F.2d 258

(10th Cir. 1979) (knapsack). The panel opinion in the instant

case collects other, similar decisions (Pet. App. 129a n.3).

18 In addition to the panel opinion in the instant case, see United

States v. Foskey, 686 F.2d 517 (D.C. Cir. 1980) (paper bag);

United States v. Goshorn, 628 F.2d 697 (Ist Cir. 1980) (plastic

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

1980) (plastic bag); United States v. Markland, 685 F.2d 174 (2d

Cir. 1980), cert. denied, No. 80-6454 (May 18, 1981) (beverage

bag); United States v. Delos-Rios, 642 F.2d 42, 46 (2d Cir.), cert.

denied, No. 80-6420 (Apr. 27, 1981) (paper bag); United States

v. Bush, 647 F.2d 357, 370-871 (8d Cir. 1981) (cardboard box);

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

macy bag); United States v. Brown, 685 F.2d 1207 (6th Cir. 1980)

(closed paper bag); United States v. Jimenez, 626 F.2d 89 (7th

Cir. 1980) (paper bag); United States v. Mackey, 626 F.2d 684

is indicated above (see page 8 note 5), subsequent to

Robbins the courts of appeals have generally continued

to draw this distinction, except where they have deemed

it to be foreclosed by Robbins itself. See, e.g., United

States v. Weber, Nos. 80-1533, et al. (1st Cir. Sept. 30,

1981), slip op. 16-17, petition for rehearing en banc pend-

ing; Sharpe v. United States, Nos. 79-5314 & 79-5315

(4th Cir. Sept. 4, 1981), slip op. 12, petition for rehear-

ing en banc pending; cf. United States v. Cleary, 656 F.2d

1302, 1306 n.9 (9th Cir. 1981), petition for cert. pending,

No. 81-953 (filed Nov. 20, 1981).

The line drawn by the courts of appeals responds not

only to the language of Sanders but to the factors that

have traditionally been employed to determine the scope

of Fourth Amendment protection: the precautions taken

to preserve privacy, the manner in which the interested

individual has employed the object or location to be

searched, and applicable property rights insofar as they

also reflect widely-shared privacy expectations. See Rakas

v. Illinois, 489 U.S. 128, 152-153 (1978) (Powell, J., con-

curring). Particularly significant has been the individ-

ual’s interest or lack of interest in assuring privacy, as

evidenced by the “configuration [and] use” of the con-

tainer involved, a fundamental basis for the automobile

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

Just as an automobile operated on public roads must, as

a practical matter, be deemed subject to a degree of of-

ficial and unofficial scrutiny quite different from that

affecting a home or office (Chambers v. Maroney, supra,

399 U.S. at 48; Carroll v. United States, supra, 267 U.S.

at 153), a paper bag or similar container lacks the in-

tegrity, privacy and security attributes of luggage that

explain the results in Chadwick and Sanders. See 442

U.S. at 764.

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

(9th Cir. 1980) (same); United States v. Gooch, 603 F.2d 122

(10th Cir. 1979) (plastic bags of marijuana) ; but cf. United States

v. Dien, 609 F.2d 1088 (2d Cir. 1979), adhered to on rehearing, 615

F.2d 10 (1980) (securely taped and carefully concealed cardboard

boxes).

The very nature of a container such as respondent’s

paper bag is incompatible with maintenance of a reason-

able expectation that its contents will be cloaked from

public exposure, especially once it has left its owner’s

hands. As Judge Tamm noted in his dissent below (Pet.

App. 41a-42a) :

[Plaper bags offer at best only minimal protection

against accidental and deliberate intrusions. A paper

bag can fall open or break very easily. It presents

no real obstacles to invasions by the curious or the

dishonest once it has left its owner’s actual posses-

sion. Because it is neither so secure nor so per-

manent as typical forms of luggage, its contents are

much more likely to become subject to public display

than if the same items had been stored in luggage.

Thus, it is doubtful that one realistically can expect

a paper bag to remain closed or intact, its contents

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

This analysis, which has been widely employed by the

courts of appeals (see, e.g., Government of the Virgin

Islands v. Rasool, supra, 657 F.2d at 591; United States

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

States v. Mannino, 635 F.2d 110, 114 (2d Cir. 1980) ;

United States v. Honigman, 633 F.2d 1336, 1338 (9th Cir.

1980) ; see also 2 W. La Fave, Search and Seizure § 5.5, at

365 (1978)), properly focuses attention upon the level of

privacy that may reasonably be expected after the con-

tainer has been separated from its owner—i.e., when, as

here, a lawful seizure of the container has occurred. For

it is only if a reasonable expectation of privacy survives

such a seizure that the incremental protection offered by

the warrant procedure will have meaningful application.”

19 Thus we note that the question is not, as some courts have

stated (see, e.g., United States v. Cleary, supra, 656 F.2d at 1305;

see also Robbins v. California, supra, slip op. 5-6 (plurality opin-

ion) ), whether the individual has any expectation of privacy in the

item to be searched. We do not contend that a random search of

respondent’s container, based on no articulable suspicion, would be

permissible. In fact the search here was based upon probable

cause and subject to post-search judicial scrutiny. The question

The en bane court of appeals held that the proper

police procedure in this case would have been to remove

the unsealed paper bag and the leather pouch from the

trunk of respondent’s automobile to “carry them un-

opened to a magistrate” (Pet. App. 22a). The very act

of gathering up an unsealed flimsy container, however,

will frequently reveal its contents to an officer’s senses

or cause spillage that will lead to the same result. The

contents of an open paper bag may be seen, simply by

holding the bag in a particular manner. A paper bag

like respondent’s, which is folded or crumpled at the

top but not sealed, may well come open simply by the

passage of time—a process which is expedited by han-

dling, however careful. Other pertinent examples can

be gleaned from the decisions of the courts of appeals

that have accumulated in the wake of Chadwick and

Sanders. For instance, in Barger v. United States, No.

80-5130 (6th Cir. Apr. 28, 1981), cert. denied, No. 80-

6914 (Oct. 5, 1981), the container was an unsealed pil-

lowcase, which contained stolen silverware. If held from

the bottom the pillowcase was likely to disclose its con-

tents to the touch. If held from the top, it might well

disclose its contents to the sight. And in United States

v. Weber, supra, police seized a rolled up rainslicker

containing a walkie-talkie, which could well have fallen

out in normal handling or have been perceptible to the

touch. Whether or not the contents of such containers

come into “plain view” is purely a matter of accident.

Having taken none of the precautions which are socially

recognized as manifesting a reasonable and realistic ex-

pectation that privacy will be maintained, the owners

of such containers are no more entitled to claim the

benefit of the warrant procedure than the owners of con-

tainers whose “contents can be inferred from their out-

here is simply whether any expectation of privacy whatsoever, how-

ever limited, should be deemed sufficient to mandate imposition of

a warrant requirement in addition to the fundamental require-

ment that the search rest upon probable cause. Of course, where

there is no expectation of privacy whatsoever, there is no search,

and thus no intrusion subject to the Fourth Amendment vel non.

ward appearance” or which are “open to ‘plain view,’

thereby obviating the need for a warrant.” Arkansas

v. Sanders, supra, 442 U.S, at 765 n. 13; Harris v. United

States, 390 U.S. 234, 236 (1968). Indeed, unless this

is so, a police officer may be required to take special

pains not to learn what his or her senses might other-

wise discern from normal handling of such a container,

lest the issue arise whether the disclosure of its con-

tents through handling was inadvertent or manipulated,

unavoidable or avoidable.”

Indeed, even before they have been separated from

their owners, paper bags and similar containers, unlike

luggage and other secure containers, are not “inevitably

associated with the expectation of privacy.” Arkansas

v. Sanders, supra, 442 U.S. at 762, citing United States

v. Chadwick, supra, 433 U.S. at 13. Suitcases and simi-

lar items typically function as portable closets and chests

of drawers; they serve as repositories for clothing toi-

letries, personal or business records, and the most intimate

items associated with daily living. The same, however,

cannot be said of paper lunch and grocery bags or even

a plastic-wrapped parcel such as was at issue in Robbins.

The intended and typical function of these containers is

simply to facilitate the movement of merchandise, or to

contain bulk items. In view of this functional distine-

tion and the scant protection afforded personal effects,

“a reasonable man would [not] identify a paper bag as

0 Yet another example of such a container is provided by United

States v. Cleary, supra. There, an open canvas bag with a broken

zipper was seized, based upon probable cause, in the course of a

warrantless search of a motor vehicle. The butt of a handgun

was visibly protruding from the bag. The gun was removed by

police at the scene of the search of the van, unloaded, and re-

placed in the bag. The bag was then taken to a nearby police station,

at which time the gun was again removed. In removing the gun

the second time some newspaper in the bag was shifted, thereby

revealing a stack of counterfeit currency. In our view, the place-

ment of the gun at the mouth of the bag rendered unreasonable

any expectation that, once the bag had been seized, police would

not remove the weapon and thereby discover what lay underneath.

a normal place to entrust his intimate personal pos-

sessions” (Pet. App. 42a) (Tamm, J., dissenting). Thus,

the Chadwick Court’s reasoning distinguishing, for pur-

poses of the warrant requirement, automobiles from

dwelling places is equally applicable to paper bags and

other insubstantial packages: “One has a lesser expecta-

tion of privacy in [a paper bag] because its function

is transportation [of merchandise or bulk items] and

it seldom serves as the repository of personal effects

.“ 433 U.S. at 12, quoting Cardwell v. Lewis, supra,

417 U.S. at 590. Accordingly, the considerations which

underlie the “automobile exception” to the warrant re-

quirement are equally applicable to respondent’s paper bag

or Robbins’ parcel.

The court of appeals rejected this conclusion, how-

ever, suggesting that what it termed an “unworthy

container rule” would ensnare those without the means

or sophistication to store or transport their personal

effects in commonly accepted forms of luggage (Pet. App.

24a). We recognize, of course, that a common grocery

bag or a similar container may at times be pressed into

service as a repository for personal effects. But the

theoretical possibility of such atypical use, without more,

does not justify treating all such containers as though

they were luggage or other more conventional reposi-

tories of private effects, for unrepresentative use is not

part of the conventional “understandings that are recog-

nized and permitted by society,” which are the touchstone

for assessing the scope of the Fourth Amendment pro-

tection. Rakas v. Illinois, supra, 439 U.S. at 144 n. 12

see Robbins v. California, supra, slip op. 6 n.3 (Powell, J.,

concurring) ; United States v. Goshorn, supra, 628 F.2d

at 700 (mere possibility that bag will be used as lug-

gage does not lead to the conclusion that such containers

are inevitably or even ordinarily associated with an ex-

pectation of privacy). For example, it does not follow

that simply because some people choose to live in an

automobile, searches of automobiles generally must be

made subject to a warrant requirement. Indeed, in

Cardwell v. Lewis, supra, 417 U.S. at 590, the Court

recognized that “because its function is transportation,”

the mere possibility of use of a motor vehicle as a resi-

dence did not alter the limited expectation of privacy in

its interior for purposes of application of the Fourth

Amendment.

D. The Imposition Of A Warrant Requirement For

All “Container” Searches Cannot Be Justified On

The Ground That It Will Provide A Clear “Bright

Line” Rule

In rejecting the argument that, for purposes of de-

termining whether a warrant is indispensable to a “rea-

21 This case does not present the question whether, by reason

of its particular features, its appearance, its surroundings, the

conduct of the person claiming Fourth Amendment protection, or

other circumstances, an individual may so manifest his expectation

of privacy in a container ordinarily employed for low-privacy uses

as to render a warrantless search of the particular container un-

reasonable. See United States v. Markland, supra, 635 F.2d at 177;

see also Pet. App. 42a-48a nn.5 & 6 (Tamm, J., dissenting). It may

be, for instance, that the markings or appearance of a parcel make

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

activates the protection of the Warrant Clause. See Ex parte

Jackson, 96 U.S. 727, 783 (1878). Or the construction of the

container, the precautions taken to secrete it, or its markings may

demonstrate that the owner desires and expects to retain a high

degree of privacy with respect to its contents. See United States

v. Dien, supra, 609 F.2d at 1044-1045 (defendant manifested an

expectation of privacy by securely taping cardboard boxes and

secreting them behind a plywood barrier). Finally, in some cases,

the owner’s circumstances or his surroundings might make it appar-

ent that a paper bag or similar container is a repository for per-

sonal effects. Where these or other similar objective factors that

give notice of a special expectation of privacy attached to a

paper bag or its equivalent are present, and that expectation is

reasonable in light of the physical attributes of the container, a

warrant could perhaps reasonably be justified as a precondition to

a search. Absent such circumstances, however, an owner’s subjec-

tive expectation of privacy (and there is no showing here that

respondent had any such subjective expectation) should be insuffi-

cient to trigger the warrant requirement. See Katz v. United

States, 389 U.S. 847, 860-862 (1967) (Harlan, J., concurring).

sonable” search, there is a distinction between luggage

or comparable repositories for personal effects and less

substantial containers, both the court below and the

plurality in Robbins suggested that recognition of such

differences would impose a serious burden upon courts

and law enforcement officials by requiring them to make

judgments as to which containers could be searched

without a warrant. See Pet. App. 4a, 23a-25a; Robbins

v. California, supra, slip op. 6 (plurality opinion). On the

other hand, the inflexible requirement that a warrant be

secured to authorize the search of any container whose

contents were not in plain view was deemed to constitute

an easily understood and administered guide for the

police and accordingly to be preferable to a standard based

upon the expectation of privacy associated with the con-

tainer at issue.

To be sure, there are in many contexts advantages to

adoption of “bright line” tests that are easily under-

stood and administered by police officers, who frequently

lack training in the subtleties of Fourth Amendment law.

But laudable as the effort to formulate a “bright line”

standard for the guidance of law enforcement officials

might be, “the mere fact that law enforcement may be

made more efficient can never by itself justify disre-

gard of the Fourth Amendment” or abandonment of

analysis from the perspective of its policies. Mincey v.

Arizona, 437 U.S. 385, 393 (1978). Just as adoption

of a simplistic approach granting police broad authority

to conduct certain classes of warrantless searches may

inpermissibly sacrifice Fourth Amendment. protections

(ibid.), the adoption of an overly broad warrant re-

quirement, designed by its simplicity to foster such pro-

tections, will hinder legitimate law enforcement functions

by proscribing activities that do not in fact contravene

the Amendment’s strictures. Thus, in the instant case,

the substitution by the court below of a simplified “bright

line” test for a standerd giving due account to respond-

ent’s limited Fourth Amendment privacy interests in

his paper bag has produced a rule that is unsupported

by the policy that underlies the Fourth Amendment: the

protection of legitimate privacy interests. Like any such

bright line rule, the rule announced by the court of ap-

peals has real costs. See Robbins v. California, supra,

slip op. 3 (Powell, J., concurring). For the reasons pre-

viously explained, the costs of requiring a warrant in

cases such as the instant one are disproportionate to the

marginal benefits involved.

Moreover, as Justice Rehnquist observed in his dissent

in Robbins (slip op. 7):

[Alny search for “bright lines“ is * * illusory.

Our entire profession is trained to attack “bright

lines” the way hounds attack foxes. Acceptance by

the courts of arguments that one thing is the “func-

tional equivalent” of the other, for example, soon

breaks down what might have been a bright line into

a blurry impressionistic pattern.

The accuracy of this prediction is revealed by decisions

rendered subsequent to Robbins (see note 5, supra).

For instance, although the Robbins plurality’s analysis

would eliminate any uncertainty attendant upon consider-

ation of the privacy expectations attaching to a con-

tainer, it simply substitutes new uncertainty as to what

constitutes a “container” within its intendment. In New

York v. Belton, swpra, decided the same day as Robbins,

the term “container” was used to “denote[] any object

capable of holding another object * * * includ[ing] closed

or open glove compartments, consoles, or other receptacles

located anywhere within the passenger compartment, as

well as luggage, boxes, bags, clothing, and the like.” Belton,

supra, slip op. 6 n.4. Invoking that broad definition, one

court of appeals has held that a rolled up raincoat con-

stitutes a container for purposes of applying the war-

rant requirement imposed by the Robbins plurality opin-

ion. United States v. Weber, supra, slip op. 16-17. A

dissenting judge protested that the broad definition of

containers applicable to searches incident to arrest that

was fashioned in Belton, which has the effect of limiting

the need to obtain a warrant, should not be applied to

increase the need for warrants in investigative searches

of objects found in automobiles, noting that the court’s

decision would extend the warrant requirement to en-

compass “blankets, newspapers or other objects which

may be used to hold other things” as well. See United

States v. Weber, supra, slip op. 21-22 (Coffin, C.J., dis-

senting).

In any event, we do not believe that substantial prac-

tical difficulties in law enforcement will result from adop-

tion of a standard that initially requires case by case

delineation of the types of containers possesing high

enough privacy attributes to justify insistence upon a

warrant. As Justice Powell explained in his concurring

opinion in Robbins (slip op. 6 n.3), “[m]any containers,

such as personal luggage, are ‘inevitably associated with

the expectation of privacy,’ Arkansas v. Sanders, supra,

at 762. Many others, varying from a plastic cup to the

ubiquitovs brown paper grocery sack, consistently lack

such an association.” In yet other instances, the owner

may so manifest his expectation of privacy in a con-

tainer ordinarily employed for non-private use by his

efforts to mark, wrap, seal, or secrete it that law en-

forcement officials are placed on notice that they should

procure a warrant before conducting a search. In any

event, all but a relatively small area of uncertainty is

likely to be clarified by judicial decisions, which, as pre-

viously noted (pages 31-32 & notes 17 & 18, supra), had

established a relatively clear and consistent pattern until

new uncertainties were introduced by the decision below

and that in Robbins.”

22 As Justice Powell noted in Robbins (slip op. 6 n.3), in border-

line cases, when the character of the container is ambiguous and

does not lend itself to a ready determination of the owner’s privacy

expectation respecting its contents, a prudent officer should “err on

the side of respecting ambiguous assertions of privacy” by obtain-

ing a warrant. When confronted with a claim that such an ambigu-

ous container was unlawfully searched without procurement of a

warrant, the proper course is for the court to conduct a hearing

to determine whether the defendant had manifested a reasonable

privacy expectation with respect to its contents. “Relevant to such

an inquiry should be the size, shape, material, and condition of the

Should the Court conclude, however, that the nature of

a container and surrounding circumstances which reflect

the possessor’s expectations of privacy therein do not

supply a workable rule for determining whether a war-

rant is required, there exists an established “bright line”

rule—the “automobile exception” to the warrant require-

ment—that can serve as a satisfactory guide to police

conduct without doing violence to the reasoned balance

of individual and societal interests called for by the

Fourth Amendment. It is to this doctrine that we now

turn our attention.

II. NO WARRANT IS REQUIRED TO SEARCH A CON-

TAINER DISCOVERED IN THE COURSE OF A

LAWFUL SEARCH OF A VEHICLE

Thus far, our argument has addressed the question

whether warrantless probable cause searches of relatively

low privacy containers that have been lawfully seized by

police, such as respondent’s bag, are unreasonable per se

under the Fourth Amendment in the absence of consent

or exigent circumstances. If our foregoing arguments

are sound, such searches comport with the Fourth Amend-

ment irrespective of the location from which the con-

tainer is seized. The argument has special force, how-

ever, in the context of the present case, where officers

had probable cause justifying a warrantless search of

the trunk of respondent’s automobile, and the paper bag

found therein was simply one of the places where they

could reasonably expect to find the contraband for which

they had reason to search. See Robbins v. California,

supra, slip op. 7 (Powell, J., concurring); id. at 1-2

(Blackmun, J., dissenting); id. at 3-7 (Rehnquist, J.,

dissenting) ; id. at 1-3, 5-6 (Stevens, J., dissenting) ;

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

exterior, the context within which it is discovered, and whether the

possessor has taken some significant precaution * * * that indicates

a desire to prevent the contents from being displayed upon simple

mischance.” Ibid.

ger, C.J., concurring in the judgment) ; id. at 772 (Black-

mun, J., dissenting).

A. A Search Of A Container Found In The Course Of

A Lawful Warrantless Automobile Search Is An

Integral Part Of The Search Of The Automobile

It is well established that the privacy interest in an

automobile and its contents is sufficiently limited that

probable cause suffices to justify a warrantless search of

its interior, including a locked trunk or glove compart-

ment. See United States v. Chadwick, supra, 433 U.S.

at 12-13; Chambers v. Maroney, supra, 399 U.S. at 48-

51; Cooper v. California, 386 U.S. 58 (1967); Carroll

v. United States, supra, 267 U.S. at 153; see pages 17-

18, supra. The reduced privacy interest that society

recognizes in the interior of an automobile renders un-

necessary recourse to a magistrate to confirm the officer’s

judgment that probable cause to search is present. If,

in this case, a magistrate had issued a warrant authoriz-

ing the search of respondent’s car, based upon the in-

formation received by officers that indicated that it con-

tained contraband, it could hardly be seriously argued

that a further warrant would have been required to

permit the search of the paper bag found within that

vehicle, or any other container that might have enclosed

the contraband believed to be present. Robbins v. Cali-

fornia, supra, slip op. 6 (Stevens, J., dissenting) ; Zurcher

v. Stanford Daily, 486 U.S. 547, 573 n.7 (1978) (Stew-

art, J., dissenting); United States v. DeSimone, No.

79-5675 (5th Cir. Nov. 2, 1981), slip op. 12739; United

States v. Kralik, 611 F.2d 343 (10th Cir. 1979) ; United

States v. Callison, 577 F.2d 53, 55 (8th Cir.), cert.

denied, 439 U.S. 873 (1978). It is our submission that

the scope of the warrantless probable cause search of

respondent’s automobile permitted by the “automobile

search” doctrine in consequence of the limited privacy

interest attaching to automobiles should be no different,

and, accordingly, that the paper bag seized by police in

this case was properly searched without a warrant. See

Robbins v. California, supra, slip op. 6 (Stevens, J., dis-

senting) ; cf. Warden v. Hayden, 387 U.S. 294, 299-300

(1967).

There is no question but that the search of respond-

ent’s automobile was supported by probable cause (see

Pet. App. 19a-20a n.22). And the grounds for suspicion

known to the officers who stopped respondent extended to

the paper bag seized from the vehicle, which was a logical

place to store the heroin that he was believed to be dis-

tributing.” Accordingly, as is explained above (pages

21-28), the warrant requirement does not assure judicial

scrutiny of the police officer’s determination of probable

cause before the beginning of the intrusion—the search

of the car. If the officer’s assessment of probable cause

is sufficiently reliable to permit the warrantless search

of the car, it is difficult indeed to see why that very

same assessment should be thought to require advance

judicial scrutiny when applied to the paper bag. The

only added inference that was drawn when the District

of Columbia police searched respondent's paper bag was

a relatively rudimentary one, i. e., that the bag could

well contain respondent’s heroin. Such an inference is

one professional law enforcement officers are well-situated

to make; no expertise in the fine points of Fourth Amend-

ment law is required. The basic policy that underlies the

warrant requirement accordingly has little, if any, ap-

plication to the search of respondent’s bag. And, as is

noted above (pages 22-23, supra), the other functions of a

warrant—limiting the scope of the search and providing

assurance respecting an officer’s authority to the person

whose property is searched—have little application to such

a search.

Practical considerations militate in favor of applica-

tion of the automobile exception to containers found

therein. Unless law enforcement officers can examine the

contents of containers found in an automobile as an

incident of a vehicular search, they can never be certain

that they have completed their search of the vehicle until

2 The informant’s tip which led to the search of respondent's

automobile was simply that respondent “had narcotics in the trunk

of his car” (Pet. App. 14a).

they have detained the driver, secured a warrant to

search the container, and executed the search. Thus,

whenever the only basis for arrest is the probable cause

which supports a search, and no basis for arrest has been

found in the search of loose items in the car, the in-

terposition of a warrant requirement may cause a

greater intrusion into the affairs of individuals than

would be necessary if the container could be searched

as part of the automobile search (see pages 21-28, supra).

The court below (Pet. App. 18a-19a) rejected the argu-

ment that Chadwick and Sanders were distinguishable

because the focus of police suspicion in those cases was

upon a particular container, whose presence in a motor

vehicle was fortuitous, rather than upon the vehicle it-

self or an integral part of it. See also Robbins v. Cali-

fornia, supra, slip op. 4-5 (plurality opinion). As Jus-

tice Stevens noted in his dissent in Robbins (slip op. 2-3

& n.8, citing Arkansas v. Sanders, 442 U.S. at 766-768

(Burger, C. J., concurring) ), however, neither Chadwick

nor Sanders truly involved an automobile search. In

both cases, the investigating officers had probable cause

to believe that a particular piece of luggage contained

contraband before it was placed in the vehicle and no

basis to search the vehicle except for the purpose of lo-

cating the specific container. The Court’s holding that

the pre-existing obligation to obtain a warrant was not

extinguished by placement of the containers in an auto-

mobile was thus quite logical, but it of course does not

justify the conclusion that either of these cases precludes

application of the automobile exception to searches of

containers discovered in the course of a probable cause

search of a vehicle. Robbins v. California, supra, slip op.

4 (Stevens J., dissenting) *

Language in Sanders that may appear to suggest otherwise

(442 U.S. at 765 n.18; emphasis added): “[o]ur decision in this case

means only that a warrant generally is required before personal

luggage can be searched and that the extent to which the Fourth

Amendment applies to containers and other parcels depends not at

all upon whether they are seized from an automobile.”, is dictum

As Judge Wilkey observed in his dissent, if the auto-

mobile exception is held not to em...ace any containers

found in an automobile, the decisions in Robbins, Sanders,

and Chadwick, collectively have the effect of “abolish[ing]

the automobile exception to the warrant requirement as

applied in narcotics cases” (Pet. App. 78a; emphasis in

original) .**° This is an ironic result, to say the least, in

view of the possessor’s total lack of any legitimate pos-

sessory interest that society is bound to respect in his

contraband.” And it is doubly ironic in light of the fact

that the automobile search exception was fashioned in

Carroll, in a setting arising from the problems of inter-

that the Court should feel free to reexamine as part of its analysis

of the fundamental Fourth Amendment issues presented by this

case. See Robbins v. California, supra, slip op. 7 (Powell, J., con-

curring); id. at 5 (Stevens, J., dissenting). See also pages 46-47,

infra.

2 As Judge Wilkey explained (ibid.):

Traffickers do not spoon contraband powders into glove com-

partments or shovel them into trunks; narcotics are transported

in containers * * *,

26 Contraband is material the possession of which the law pro-

scribes and to which “ ‘the government is entitled.“ Carroll v.

United States, supra, 267 U.S. at 149, quoting Boyd v. United

States, 116 U.S. 616, 623 (1886). Respondent’s heroin was contra-

band subject to forfeiture under hoth federal and the District of

Columbia law, as was the vehicle in which it was being transported

and, for that matter, the paper bag that contained it. See 21 U.S.C.

881(f); D.C. Code Ann. § 83-417 (1973). In Cooper v. California,

supra, 386 U.S. at 60-61, a warrantless search of an automobile was

upheld based upon provisions of California law that authorized sei-

zure and forfeiture of any vehicle used for transportation of narcotic

substances. Each of these statutory provisions reflects the dimin-

ished property rights society recognizes in contraband materials,

and they indicate that such materials cannot support a substantial

legitimate expectation of privacy. See Raus v. Illinois, supra, 439

U.S. at 153 (Powell, J., concurring). Where, as here, the wrap-

pings in which contraband is placed do not by themselves reflect an

expectation of substantial privacy respecting their contents, the

ensuing search must be deemed a fortiori reasonable and permissi-

ble under the Fourth Amendment. See Pet. App. 99a-10la (Wilkey,

J., dissenting) .

dicting illicit trade in another controlled substance—

intoxicating liquors. See 267 U.S. at 145-146.

B. Even If Some Containers Discovered In The Course

Of An Automobile Search Deserve The Additional

Protection Of The Warrant Procedure, There Is No

Reasonable Basis For Treating Insubsiantial Con-

tainers Differently From Compartments Of The

Automobile

While we question whether such a decision would mean-

ingfully advance the interests served by the Fourth

Amendment, the Court could logically conclude that cer-

tain containers, such as suitcases or attache cases, are

sufficiently invested with socially valued privacy attributes

that their warrantless search is unreasonable even

when they are discovered in the course of a probable

cause search of an automoble. But the imposition of a

warrant requirement respecting containers located in an

automobile is logical only to the extent it can reasonably

be concluded that those containers have substantial in-

dependent privacy attributes that rise above those em-

bodied in the automobile itself and consequently command

additional Fourth Amendment protection. This obviously

cannot be said for the paper bag respondent used to store

his heroin cache, the plastic wrapped parcel containing

Robbins’ marijuana, or similar containers. Certainly such

containers are ordinarily considerably less likely than

the glove compartment of an automobile to contain pri-

vate papers or intimate personal effects. In addition,

when contrasted to luggage or briefcases, such parcels,

particularly when unsealed, are subject to spillage or

tearing and are otherwise likely to reveal their contents

as the result of being handled. Thus, it is difficult to

see how such parcels could reasonably be said to support

an expectation of privacy demonstrably greater than that

recognized in the vehicle in which they are placed. See

United States v. Mackey, supra, 626 F.2d at 687. The in-

congruity of a contrary rule is manifested by the decision

of the en banc court below. Thus, although the court be-

low acknowledged that respondent’s privacy expectation

in the locked trunk of his automobile was insufficient to

require procurement of a warrant as a predicate to un-

locking and searching it (Pet. App. 20a), it held that,

absent “special exigencies,” a warrant was necessary

before the officers could look into the flimsy, unsealed

lunch bag they discovered within it.

Even if the placement of some kinds of containers

within an automobile does not necessarily deprive their

owners of the level of protection afforded to such con-

tainers in other settings, respondent’s decision to carry an

unsealed paper bag in his automobile, which by reason

of its “configuration, use and regulation” limits the

driver’s legitimate expectation of privacy in its con-

tents, Arkansas v. Sanders, 442 U.S. at 761, nonethe-

less reflects a failure to take such reasonable precautions

to maintain his privacy as would make application of the

the warrant requirement appropriate. See Rakas v.

Illinois, supra, 439 U.S. at 152-153 (Powell, J., concur-

ring). Accordingly, the setting in which petitioner’s bag

was discovered provides an additional indication that the

warrantless search of the bag, found by the courts to have

been based on probable cause, was a reasonable one.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submited.

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

JOHN FICHTER DE PUE

Attorney

DECEMBER 1981

r . 6. covennment painting orrice; 1961 359042 731

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