Petitioners Reply Brief — United States v. Ross

| POftice- Supreme Court, US. |

SRA ED

FEB 20 1962

No, 80-2209 ALEXANDER L. STEVAS,

ay “fs SLERK

—_ mee

In the Supreme Court of the United States

Octoser TERM, 1981

UNITED STATES OF AMERICA, PETITIONER

; Vv.

ALssrT Ross, JR.

_ON WRIT OF CERTIORARI TO THE :

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE UNITED STATES .

‘Rex E, Lee

Solicitor General

Department of Justice

- Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Arkansas v. Sanders, 442 U.S. 753 .....665: 2, 4,5

Cady v. Dombrowski, 413 U.S. 433 ......00000 4

Cardwell v. Lewis, 417 U.S. 583 ......eeeeeees ‘

Carroll v. United States, 267 U.S. 132 ......005: 3

Chambers v. Maroney, 399 U.S. 42 ....ceeeeees 4

Colorado v. Bannister, ago iE cceernseed hae 4

Cooper v. California, 386 U.S. 58 .....e cece eee 4

Jackson, Ex parte,96 U.S. 727 ...ccecceeeees 5-6

Katz v. United States, 389 U.S. 347 oo... cece eens 6

New York v. Belton, No. 80-328

COME Te FPOUP ab eed ebb devcccecccnsessnese 4,7

Robbins vy. California, No. 80-148

ITTEE hs phally bac 00 o6o0s 000 6eiwtars 5,8

South Dakota v. Opperman, 428 U.S. 364 ...... 4

FORE MOPPING ED CO) cc ccctcccosevevves 4

United States v. Chadwick, 433 U.S. 1 ....... 4,5

United States v. Marin, Nos. 81-1300 &

81-1301 (2d Cir. Jan. 18, 1982) ........5005- 7-8

United States v. Mitchell, 445 U.S. 535 .......5. 5

United States v. Weber, 664 F. 2d 841 .......... 8

United States v. Weber, Nos. 80-1533,

i cee CML EE, AB ASOT) cc cckccncueesens 8

Walter v. United States, 447 U.S. 649 ......605 6

Il

Page

Constitution and statutes:

United States Constitution, Fourth

Ro Lis ode's.e cine. bees Gebece L227

1B S.C. BIOB-IFIO. 2. cccccccccccccvccceces 6

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1981

No. 80-2209

UNITED STATES OF AMERICA, PETITIONER

Vv.

ALBERT Ross, JR.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

In our opening brief we set forth two independent

grounds for sustaining the search of respondent's paper

bag, lawfully seized from the trunk of his car based upon

probable cause to believe that it contained heroin. First, we

argue (Br. 14-41) that procurement of a warrant is not a

precondition to a reasonable search when police have law-

fully seized a container that is not conventionally associated

with substantial privacy interests and possess probable

cause to believe that it contains contraband or evidence of a

crime. Second, we contend that, whatever the rule may be in

other settings, application of the warrant requirement to a

search of a container found during a probable cause search

of an automobile is unjustified. Neither respondent nor

amicus curiae American Civil Liberties Union (ACLU) has

come to grips with the fundamental principles of Fourth

Amendment jurisprudence that underlie each of our argu-

ments. We accordingly note only a few salient points in

reply

2

1. In response to our attempt to examine the issue on the

basis of the policies underlying this Court's decisions

regarding the applicability of a warrant requirement to

various types of searches, respondent and amicus ACLU

simply assert that “warrantless searches are per se unreason-

able” (Resp. Br. 23; see ACLU Br. 14-15). Amicus ACLU

urges that our argument, which looks toward the nature of

the privacy interest at stake and the benefits to be derived

from insistence upon the warrant procedure, would create

an exception to a warrant requirement finding “no support

in either the language of the Fourth Amendment or any

interpretation of that Amendment made by this Court” (Br.

38). These contentions stand the matter upon its head. As

noted in our opening brief (at 14-15 n.6), the bare language

of the Fourth Amendment imposes no requirement of

recourse to warrants whatsoever. This Court, to be sure, has

held that in order to meet the test of reasonableness laid

down by the Fourth Amendment, “normally searches of

private property [must] be performed pursuant to a search

warrant * * *.” Arkansas v. Sanders, 442 U.S. 753, 758

(1979). But the Court has been equally firm pointing out

that exceptions are fashioned to this general presumption

where “the societal costs of obtaining a warrant * * * out-

weigh the reasons for prior recourse to a neutral magis-

trate.” /d. at 759.

We have accordingly attempted to argue the issue in

terms of whether the benefits of applying a warrant

requirement to probable cause searches of containers hav-

ing relatively low privacy attributes are in general likely to

outweigh the social and individual costs of such a require-

ment. Thus, we have carefully analyzed the benefits gener-

ally derived from warrants, and shown that they are greatly

attenuated in the context of a search of a seized container

such as respondent’s paper bag (Br. 21-24, 29, 43). At the

same time, we have contended (Br. 25-28, 43-46) that the

3

imposition of a warrant requirement has substantial costs

that, while well justified in other contexts, outweigh the

benefits in this context; in this connection, we have noted

the special costs to other Fourth Amendment interests of

the container’s owner flowing from a warrant requirement

for container searches (Br. 25-28).

Neither respondent nor amicus has elected to join issue

with us ona functional analysis of the costs and benefits ofa

warrant requirement for this type of case. Respondent

simply does not address the question whether a warrant

requirement serves its usual purpose in this setting. The

ACLU is similarly silent as to the applicability of most of

the justifications usually cited in support of the warrant

requirement, dismissing our contentions as irrelevant “pol-

icy considerations” (Br. 46 n.38). But it is the policy of the

Fourth Amendment itself that is at issue here.'

2. In our second argument we note (Br. 42-43) that

because the policy of the Fourth Amendment does not

require a warrant when a vehicle is searched upon probable

cause pertaining to the vehicle, there is no justification for

limiting the search more strictly than if it were conducted

pursuant to a warrant authorizing a search of the vehicle.

Perhaps in recognition of the odd result fostered by the

decision of the court of appeals, respondent's answer to our

contention is the suggestion (Br. 6-7, 13-21) that the

'The amicus curiae does insist that even in the setting of this case, a

warrant serves to establish “the particularity of the search to be con-

ducted” (Br. 30), adding “{t}here is no more justification to permit

wholly unparticularized and general searches of automobile trunks

than of any other area” (ihid.). This argument is misconceived, for at the

point at which a warrant to search respondent's bag could have been

sought, a “general” search of the automobile trunk had already been

lawfully completed and the focus of interest had narrowed to the bag.

Unless Carroll v. United States, 267 U.S. 132(1925). is to be overruled,

a warrant requirement simply does not serve to confine the search in the

manner suggested.

4

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

and limit the automobile search exception to exigent cir-

cumstances created by the mobility of an unsecured auto-

mobile on the highway. We do not essay here to defend the

automobile search doctrine repeatedly endorsed by the

Court.? We do observe, however, that respondent's pro-

posed modification of the automobile search rule would not

aid him, for the search of his bag was completed while his

car was parked ona public street rather than while the car

was in secure police custody, as was the case in Chambers.

Thus, unless one assumes that the act of seizing a vehicle

itself eliminates the basis for a search—a proposition anal-

ogous to that rejected in New York v. Belton, No. 80-328

(July 1, 1981), slip op. 7 n.5—respondent’s contention is

unavailing.’

3. The ACLU suggests (Br. 6 & n.3, 47 n.39) that our

failure to challenge the court of appeals’ suppression of the

contents of respondent's leather pouch reveals some defect

2See, ¢.g., Colorado v. Bannister, 449 U.S. | (1980); Arkansas v.

Sanders, supra, 442 U.S. at 760; United States v. Chadwick,433 U.S. |,

12-13 (1977); South Dakota v. Opperman, 428 U.S. 364, 367 (1976),

Texas v. White, 423 U.S, 67 (1975); Cardwell v. Lewis, 417 U.S. 583,

589 (1974); Cady v. Dombrowski, 413 U.S. 433, 439-440 (1973);

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

)We do not understand respondent's assertion (Br. 8) that “the pres-

ent case involves a warrantless seizure of an automobile for the sole

purpose of transporting it to the station house for the warrantless

seizure of a paper bag” or the conclusion drawn (ibid.) that “the auto-

mobile exception * * * cannot apply” to such an automobile. It is

undisputed that respondent's paper bag was discovered in the course of

a lawful on-the-spot search of his automobile, and that the bag, too, was

searched on the spot, at which time the heroin contained within was

discovered (H. Tr. 66-67). The officers then replaced the bag and its

contents in respondent's trunk, transported the vehicle to a police

station, and there removed the heroin from the bag and completed a

search of the car (ibid.). These facts in no way undercut the validity of

the initial search of the bag or sever the connection between that search

and the search of respondent's car.

5

or inconsistency in our analysis. That suggestion is unfound-

ed. The reason we did not challenge the ruling below regard -

ing the pouch was that upon rehearing in the court of

appeals the government conceded that suppression of the

pouch was proper (Pet. App. 15a). We accordingly deemed

it inappropriate to challenge that aspect of the decision

below in our petition. See United States v. Mitchell, 445

U.S, 535, 546 n.7 (1980). It is perfectly true, however, that

adoption of our automobile search analysis would in all

likelihood validate the search of containers such as respond-

ent’s pouch.4 Contrary to the ACL U's contention (Br. 27,47

n.39), however, that result is not irreconcilable with Sand-

ersand Chadwick, for those cases did not involve searches

of a container occurring in the course of an automobile

search based upon probable cause extending tw the auto-

mobile itself. See Robbins v. California, No. 80-148 (July

1, 1981), slip op. 7 (Powell, J. concurring), id. at 1-2

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

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

Sanders, supra, 442 U.S. at 767-768 (Burger, C.J., concur-

ring in the judgment). id. at 772 (Blackmun, J., dissenting).°

4. Because mail is often wrapped in a paper container -

an envelope—respondent suggests (Br. 27-28) that our

argument respecting low privacy containers is irreconcila-

ble with the rule of Ex parte Jackson, 96 U.S, 727, 733

“Should this Court reverse on an analysis suggesting that the pouch

was properly admitted in evidence, the court of appeals would then be

free to decide on remand whether to reconsider its holding with respect

to the pouch.

‘Contrary to the ACLU’s assumption (Br, 1%). the relationship

between respondent's automobile trunk and his heroin was far from

casual or temporary. The officers who stopped respondent had reliable

information that respondent was selling narcotics from the automobile

trunk (H. Tr, 4). Their suspicion did not focus on the paper bag until it

was discovered in searching the trunk.

\

6

(1878), that mail is generally cloaked with the protection of

a warrant requirement, Respondent misconceives our argu-

ment, We do not question the decision in Ex parte Jackson,

and we have no doubt that features of a package or con-

tainer other than physical durability may provide the objec-

tive indicia that the container is vested with privacy attri-

butes of such a magnitude that a warrant is needed to

protect against the costs of an unreasonable search. The

special function of mail as an organ of communication as

well as commerce, together with the laws which protect the

sanctity of the mails, establish the legitimacy and socially

recognized substantiality of the expectation of privacy for

mail. See Walter v. United States, 447 U.S, 649, 655 (1980)

(opinion of Stevens, J.); 18 U.S.C. 1700-1710. Respondent's

unsealed lunch bag, however, had no attributes, structural

or otherwise, that could support a substantial expectation

of continued privacy after it came lawfully into the hands of

police officers.

5. The ACLU suggests (Br. 58) that the analysis we

employ to distinguish containers that may reasonably be

searched without a warrant from more private containers

such as luggage “requires inquiry into the accused's subjec-

tive intent.” This suggestion reflects a serious misunder-

standing of our submission. Consistent with Katz v, United

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring),

the focus of our analysis is upon the reasonableness and

socially recognized substantiality of an expectation of pri-

vacy, rather than upon its mere existence. Toward that end

it is appropriate to consider not only the physical properties

of the container chosen by an individual, but any other

conduct or circumstance that objective/y manifests the

owner's expectation of privacy.

Rather than the government, it is the amicus curiae that

focuses improperly (Br. 49, 60) upon the subjective privacy

expectations of an individual, branding as unreasonable

any warrantless search unless the owner “knowingly

>

exposes [his property] to the public.” The suggested excep-

tion is too narrow. Indeed, it is no exception atall, for when

items are exposed to public view, their examination simply

does not entail any “search” within the purview of the

Fourth Amendment. The ACLU's formulation thus would

effectively eliminate all consideration of the reasonableness

of a claim of privacy from the Fourth Amendment calculus.

In fact, by choosing a container not calculated to maintain

privacy after it has left his hands, an individual objectively

manifests the absence of reasonable expectation of substan-

tial privacy, Because any purely private expectation to the

contrary is necessarily unknown to the police, it should not

receive any consideration in determining the reasonable-

ness of a search under the Fourth Amendment.

6. Respondent (Br. 28) and the ACLU (Br. 56) both

assert that insurmountable problems of administration will

arise unless the warrant requirement is extended to all

containers, of whatever description, without regard to the

presence or absence of any legitimate expectation of sub-

stantial privacy maintained therein. This prediction is sub-

stantially undercut, however, by the striking uniformity

with which the courts of appeals have distinguished between

luggage and its functional equivalents on the one hand and

paper and plastic bags on the other (see cases cited in our

opening brief at 31-32 & nn.17-18).° And neither respond-

ent nor amicus makes any effort to delimit the scope of the

*Contrary to respondent's assertion (Br, 31-32), the courts of appeals’

decisions we have cited (Br, 31-33 & n. 18) generally rest upon considera-

tion of the individual's expectation of privacy rather than a search-

incident-to-arrest rationale or true exigent circumstances, It may well

be that after New York vy. Belton, supra, the result in some of these

cases could be justified on an alternative ground. That possibility,

however, has no bearing upon the relevant point: the ability of the

courts of appeals to achieve a high degree of consistency in cases

presenting the question whether a warrant is required, And in the

aftermath of Belion, the courts of appeals continue to draw the distine-

tion we have noted, See, ¢.¢., United States v. Marin, Nos. 81-1300 &

sweeping doctrine enunciated by the court of appeals, by

explaining how “containers” would be defined for the pur-

pose of that rule, Thus, rather than climinate the problem of

determining when a warrant is required, the decision below

merely shifts the locus of uncertainty.’ In sum, it may be

that a degree of uncertain.y would attend any rule govern-

ing the circumstances in which warrants are required, but

there is little practical difference in this regard between the

rule for which we contend and that adopted by the court of

appeals; practical considerationsaccordingly cannot justify

abandoning an analysis that turns upon the pertinent

Fourth Amendment policies.

CONCLUSION

For the foregoing reasons and the reasons set forth in our

opening brief, the judgment of the court of appeals should

be reversed.

Respectfully submitted.

Rex E, Lee

Solicitor General

FEBRUARY 1982

81-1301 (2d Cir, Jan, 18, 1982), slip op. 853-854; United States v.

Weber, Nos, 80-1533 e¢ al. (ist Cir, Dec, 28, 1981), slip op. 5-6 (on

petition for rehearing; see note 7, infra).

’As noted in our opening brief (at 39), in United States v. Weber, 664

F, 2d 841 (1981), the First Circuit held that a warrant was required to

unrolla rolled up raincoat seized by law enforcement authorities. Upon

consideration of the government's petition for rehearing, the court

adhered to the view that Robbins v. California requires that result, but

concluded that the law of the First Circuit had been to the contrary

prior to Robbins, and accordingly declined to give retroactive effect to

its interpretation of Robbins. United States v. Weber, Nos, 80-1533, et

al. (Dec, 28, 1981).

DOJ-1982-02