# Petitioners Reply Brief — United States v. Ross > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2375%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 798 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2375%3A07. Public record. Not legal advice.