Amicus Brief — United States v. Ross

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Moe Supreme Court, U.S.

{ ILED

No. 80-2209 JAN 25 1992

ALEXANDER - STEVAS.

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1981

UNITED STATES OF AMERICA,

= Petitioner,

ALBERT Ross, JR.,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION FUND

OF THE NATIONAL CAPITAL AREA, AMICI CURIAE,

IN SUPPORT OF RESPONDENT

RAYMOND C. CLEVENGER, III

Counsel of Record

JOHN F. COONEY

LAUREN B, HOMER

HELEN TORELLI

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Counsel for Amici Curiae

Of Counsel:

ARTHUR B. SPITZER

American Civil Liberties Union

Fund of the National Capital Area

CHARLEs S. SIMS

American Civil Liberties Union

January 25, 1982

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED eee esepeoeaeeaeeveeeeeeeeeeneee

INTEREST OF AMICI CURIAE eeeeeeeeeeeeeeeenee

STATEMENT

eoeeneeneeeeeeeeeeeeveeeeepreeeeeeeeeeene

SUMMARY OF ARGUMENT ..-cceecesesesveseveees

ARGUMENT

CONTAINERS FOUND IN THE LOCKED LUGGAGE

COMPARTMENT OF AN AUTOMOBILE MAY NOT

BE SEARCHED WITHOUT A WARRANT ......+--

Important Expectations of Privacy

Prohibit Warrantless Searches of

Containers Located Temporarily in

the Luggage Compartment of an

Automobile eenseeeeeeneeeeeeneeeneneeee

Containers Are Protected by

the Fourth Amendment and Do

Not Forfeit That Protection

Because They Are Located

Temporarily in a Locked

Automobile Trunk ...-ssseeees

The Automobile Exception to

the Warrant Clause Does Not

Legitimate Warrantless

Searches of Containers in

Locked Trunks eeeeeneeeneeneenee

a .& N fF

Il.

Page

The Government Has Offered No

Valid Justification for Creating

a Broad “Automobile Trunk”

Exception to the Warrant

CLAUSES ceoccocsecccccccccccccecccecs

THE FOURTH AMENDMENT'S WARRANT

REQUIREMENT APPLIES TO ALL

CONTAINERS, WHEREVER FOUND

AND HOWEVER "WORTHY" OR

“UNWORTHY”, UNLESS THEIR

CONTENTS ARE IN PLAIN VIEW ...-eeeeees

The "“Unworthy” Container Rule

Finds No Support in the History

~ Of the Pourth Amendment or the

Decisions of This Court .......s+.

The Government Has Not

Substantiated Its Contention That

No Person Has a Reasonable

Expectation of Privacy in the

Contents of an "“Unworthy”

CEE ctnsdeceeceevesvesedeee

The Government Concedes That the

“Unworthy” Container Rule Would

Not Advance the Goals of

Administrative and Judicial

Efficiency eeeneneeeeeeneneeeneeneeeneeee

CONCLUSION eeneeeeaeeeeeevneeeeeeeeeeevneeaeeaeeeaene

iii

TABLE OF AUTHORITIES

CASES: Page

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

e*eeeeeeeeeeeeneeeeeeeeeeeeeeeeeeeeneeeee passim

Six Unknown Named ents of The

ome

eeeeeeeeeeeeeaeeeeaeeeeaeeeaeeneee

Bivens v.

United States, 116 U.S. 616

Camara v. Municipal Court, 387 U.S. 523

eeeeeeeeeeeeeeeeeeeeeeeaeeeeaeeeneanee 15,46

Chimel v. California, 395 U.S. 752 (1970)

eee eeeeaeevneeeeeneeeveeeeaeneeeeeneeeeneeaeaeeeaene 25,31

Colorado v. Bannister, 449 U.S. 1 (1980)

per curiam eeenereeeneeeneneeeneeeeeeeneeeeneeneenee 24

Coolidge v. New shire, 403 U.S. 443

eevee eeeeeeeeveeeeeeveeeeaeeeaeeaeaneaeeeae 24

Delaware v. Prouse, 440 U.S. 648 (1979) . 18,23

Ex Parte Jackson, 96 U.S. 727 (1878) ....19,20,42

G.M. peasing Corp. v. United States, 429

U.S. PIMs ain ol oath e abe oe bea) ae

Gouled v. United States, 255 U.S. 298

eeeeeveeeeeeeeeeeeeaeeeeeeeeeeaeeaeene 42

Jones v. United States, 357 U.S. 493

CU Cas baie e000 0 be 6.6 een cs vec BOnee

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

eeeevneeneeeeeeeeeeeeaeeeeeeeeeeeeene 15,46,49

Michigan v. Summers, 101 S. Ct. 2587

eeneeveeeeeeeeneeeeeeeeeeeeeeaneeneeee 3

Page

Mincey v. Arizona, 437 U.S. 385 (1978) .. passim

Mitchell v. W.T. Grant Co., 416 U.S. 600

4) eeeeeeeeveeeeeeeeeveeeweeeeaeeveeaeeeeene 29

New York v. Belton, 101 S. Ct. 2860

*eeeeeveeeeeeeeeeeeeeveeeeeeaeweeeeee 24

Preston v. United States, 376 U.S. 364

eeeeveeeveeaeveeeeveeeeeeeeeeeeeeveeeeeene 25

Robbins v. California, 453 U.S. e: 201

- te eeeeeeeveeaeeeeeeeeaenee passim

South Dakota v. erman, 428 U.S. 364

eeeeeeeeeeeeeeeeeeeeeeeeeeeeaeeene 35

Terry v. Ohio, 392 U.S. 1 (1968) ....+++- 3

Thomas v. Washington Gas Light Co., 448

*eeeeeeeeeeeveeeeeeeeeeee 29

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

eee eaeeeeweeaeeeweeeeeeeeeeneeeneeneeeeeee passim

United States v. Jeffers, 342 U.S. 48

eeeeeeveeeeeeweeeeeeeeeeeeeeeaeeeene 15

United States v. Ross, 655 F.2d 1159

x D. . Ir. en banc) eeeeeee eevee passim

United States v. Van Leeuwen, 397 U.S.

249 (1970) eeenveveeeveeeeeeeeeaeeaeeeaeeeeene 20,42,54

Vail v. Louisiana, 399 U.S. 30 (1970).... 29

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amend. IV ..eeesesesvevcesees passim

Page

FEDERAL RULES:

Fed. R. Crim. Pro., Rule 41(c)(2) eeeeevee 35

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1981

No. 80-2209

United States of America,

Petitioner,

Albert Ross, Jr.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the District of

Columbia Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION AND THE AMERICAN CIVIL LIBERTIES UNION

FUND OF THE NATIONAL CAPITAL AREA,

AMICI CURIAE, IN SUPPORT OF RESPONDENT

IONS PRESENTED

l. Whether the Court shculd expand

the narrow exception to the Warrant Clause

for automobile searches to permit

warrantless searches of every container

found in the trunk of an automobile that

has been seized upon probable cause.

2. Whether the Court should create a

new exception to the Fourth Amendment to

strip “unworthy” containers of Warrant

Clause protection.

INTEREST OF AMICI CURIAE

The American Civil Liberties Union

(ACLU) is a non-partisan, non-profit

membership organization which for more than

sixty years has been dedicated to the

protection of personal liberty through a

vigorous defense of the fundamental

principles embodied in the Bill of Rights.

The American Civil Liberties Union Fund of

the National Capital Area (Fund) is the

Washington, D.C. area litigation arm of the

ACLU. ACLU and Fund have frequently

appeared in this Court and in other courts,

as counsel for the parties and as amici, in

Fourth Amendment cases. E.g., Terry v.

Ohio, 392 U.S. 1 (1968); Michigan v.

Summers, 101 S. Ct. 2587 (1981).

This case presents two major Fourth

Amendment questions of critical import to

those concerned with civil liberties.

First, the United States has argued that

several decisions of this Court should be

overruled, so that, if probable cause

exists to seize a motor vehicle, a general

warrantless search of the vehicle and every

container found therein would become

permissible. The government also has

argued that the Court should declare that

individuals have no reasonable expectation

of privacy in a broad range of bags,

parcels and containers commonly used in

everyday life to transport or store

possessions. If that rule were adopted,

those containers would become subject to

warrantless searches wherever found --

whether in the home, the car, or on a

person's arm on a public street. We have

submitted this Brief because of our view

that the impact of the government's

proposed reductions in Fourth Amendment

protections would significantly and

adversely affect the liberties of all law-

abiding persons.2/

STATEMENT

This case involves the constitu-

tionality of a warrantless search of a

closed paper bag, found in the locked trunk

of a motor vehicle after the vehicle had

been stopped and seized, and its driver

arrested, on the basis of probable cause to

believe the trunk of the car contained

contraband. In its order granting

certiorari, the Court asked the parties to

1/ Letters of consent from the parties

to the filing of this brief have been

lodged with the Clerk of the Court.

address the question whether it should

reconsider its decision in Robbins v.

California, 453 U.S. __, 101 S. Ct. 2841

(1981) (hereinafter “Robbins"). There, the

plurality opinion held that a warrant was

required to search any container outside

the passenger compartment of a motor

vehicle during a warrantless search based

upon probable cause, unless the

characteristics of the container caused its

contents to be obvious to an observer. We

respectfully submit that Robbins was

correctly decided and that, to the extent

it is reconsidered in this case, its

holding should not be disturbed.

We will not repeat the parties’

4éscription of the facts and the procedural

posture of the case. We wish to note,

however, that two issues litigated below

are not before the Court on the

government's petition for certiorari:

(1) The government has not raised in this

Court the question whether Arkansas v.

Sanders, 442 U.S. 753 (1979) (hereinafter

“Sanders"), applies retroactively.2/

(2) The government conceded below that the

warrantless search of a zippered red

leather pouch found alongside the paper bag

in the trunk of respondent's automobile was

unlawful under Sanders, and the lawfulness

of that search is not at issue here.=

SUMMARY OF ARGUMENT

The Court's request that the parties

address the question whether Robbins should

be reconsidered has led the government to

2/ Petition of the United States for

Gertiorari at 5 n.l & 8 n.7; Brief of the

ping te States (hereinafter “Gov't Brief")

at n.2.

3/ Gov't Brief at 5 n.2. See United

tes v. , 655 F.2a4 1155, 1161 & n.3

Ge re 1) ( n banc). In

consequence, res ent’s conviction will

be reversed whatever the outcome of this

proceeding.

advocate two overbroad and constitutionally

unjustified positions.

Its most extreme suggestion is to urge

a dramatic expansion of the so-called .

“automobile exception” to the Warrant

Clause of the Fourth Amendment. The

government argues that the Warrant Clause

should not apply at all to an automobile or

its contents if a law enforcement officer

has probable cause to believe it contains

evidence of a crime.— It urges this Court

to establish a per se rule that any

container found in an automobile in such

circumstances may therefore be searched

without a warrant -- no matter what the

nature of its construction or its likely

contents, and even though the vehicle and

its occupants have been secured.

4/ Gov't Brief at 41-47.

We believe the government's “auto-

mobile trunk exception" argument is wholly

inconsistent with a series of recent Fourth

Amendment decisions -- most particularly

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

(1977) (hereinafter “Chadwick"), Sanders,

and Robbins. ‘Those decisions are sound law

and should be reaffirmed. The government

has advanced no rationale to support its

view that reasonable expectations of

privacy are abandoned when containers are

placed in locked motor vehicle trunks. It

has also failed to articulate any

compelling need to justify creating a new

exception to the Warrant Clause. It simply

reiterates the constitutionally

insufficient notion that law enforcement

would be streamlined if there were no

warrant requirement.

Alternatively, the government urges

adoption of a new Warrant Clause exception

for certain types of containers which, in

its view, are unworthy of protection

against warrantless intrusion. The

government recognizes that this rule would

be more difficult for the police and the

courts to comprehend or administer than the

rule set forth in Robbins. Yet it argues

that the Court should embark on a course of

providing or withholding constitutional

protection to a wide variety of receptacles

commonly used to transport possessions,

depending upon such ambiguous

considerations as whether or not they are

“conventionally regarded as embodying a

substantial privacy interest"; are the

“functional equivalent of luggage”; contain

“personal” or “impersonal” matter; or

display indicia of a subjective desire on

the part of their owner to conceal their

contents. Gov't Brief at 14, 27-28, 31.

The government's “unworthy” container

argument is unmeritorious as a matter of

constitutional law. A broad variety of

“non-traditional” containers, including

paper bags, plastic bags, and tote bags,

are commonly used and transported by the

public with full and reasonable

expectations that they will remain free

from warrantless governmental intrusion.

The notion that the Fourth Amendment

protects only certain conventionally

approved, rigid containers or those located

in certain places is simply wrong. Such a

rule will necessarily lead, as the

government concedes, to a new wave of

Warrant Clause litigation. Furthermore,

law enforcement officers considering

whether they must obtain a warrant before

searching a container will be unable to

derive any meaningful guidance from the

5/ See Gov't Brief at 40-41.

mystifying tests the government regards as

relevant.

We believe that Robbins and the Court

of Appeals’ decision below were correct.

The Court should state plainly that

warrantless intrusions into containers in

locked automobile trunks are unlawful. If

this is made explicit, the police routinely

will take the ministerial and nonburdensome

steps necessary to obtain warrants, and no

law enforcement interest will suffer as a

consequence. Rather, this salutary

development will allow law enforcement

authorities to avoid the loss of cases that

should have been won and reduce the

interminable litigation in this area.

ARGUMENT

I. CONTAINERS FOUND IN THE LOCKED LUGGAGE

COMPARTMENT OF AN AUTOMOBILE MAY NOT

BE SEARCHED WITHOUT A WARRANT.

The government has seized upon the

Court's invitation to address whether the

decision in Robbins should be reconsidered

to argue the broad proposition that any

container found in the trunk of an

automobile, stopped and seized upon

probable cause, should be subject to

warrantless search. The Court previously

has considered and squarely rejected

similar arguments in Sanders and in

Robbins. The Court should once again and

flatly decline the government's invitation

to create such an unjustifiable extension

of the narrow automobile exception to the

Warrant Clause.

The government's Brief restates the

arguments in Sanders and Robbins and

advances no new reasons why the proposed

exception should be created. The fatal

flaw in the government's position is its

refusal to come to terms with the decision

in Chadwick that reasonable and legitimate

expectations of privacy attach to

containers, even when located outside the

home or office. In the final analysis, the

government's argument reduces to two

practical considerations, neither of which

supports the rule for which the government

contends: (1) the familiar assertion that

police officers are unnecessarily

inconvenienced by the necessity of

obtaining a search warrant for containers

found in automobiles; and (2) the promise

that its proposed “bright-line" test would

resolve the doctrinal uncertainty in this

area and thereby reduce the burden

automobile search cases impose on judicial

resources. As we show below, the Court

should reject the government's invitation

to overturn the considered development of

the law in this area.

A. Important Expectations of Privacy

Prohibit Warrantless Searches of

Containers Located Temporarily

in the Luggage Compartment

of an Automobile.

1. Containers Are Protected by the

Fourth Amendment and Do Not

Forfeit That Protection Because

They Are Located Temporarily in

a Locked Automobile Trunk.

The Fourth Amendment provides that

“Ct]he right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violatea. "S/ This Court long

has held that, to be “reasonable,” a search

ordinarily must be conducted on the basis

of prior authorization granted by a neutral

magistrate in the form of a valid search

warrant .2/ The Court has so held primarily

6 U.S. Const., Amend. IV(1)(c)

emphasis added).

7/ E.g. Araneae v. Sanders, supra,

U.S. 385, 390 (1978); Unit tates v.

Chadwick, supra, 433 U.S. at 9.

because of its recognition that law

enforcement officers preoccupied with

discovering crime may tend to initiate

searches where no probable cause exists, or

may conduct searches in a wide-ranging and

general fashion. To guard against

governmental invasion of the liberties of

the law-abiding, the Court has held

repeatedly that the warrant requirement is

subject only to a few “jealously and

carefully drawn" exceptions .2/ And the

government bears the heavy burden of

proving the need for such extraordinary

exceptions to the Warrant Clause. 10/

8/ Id. See Arkansas v. Sanders,

Supra, 442 U.S. at 759 & n.5. The Court

8s also identified the need to inform the

subjects of a search of the legitimacy of

police authority as another reason for the

warrant requirement. See, e.g., Camara v.

aun ee Court, 387 U.S. 5 53 ?

nit tes v. Chadwick, supra, 433 U.S.

at 9.

9/ See, e.g., Arkansas v. Sanders,

s ga. 442 » at 759 (quoting Jones v.

ted cates, 389 U.S. 347, 357

10/ nite. ted States v. Jeffers, 342

tvs. 48, $1 TSE Ey ets

The Court has held that the warrant

requirement applies not only t« places but

sleo to any personal effects in which

people meintein reasonable expectations of

privacy, such a6 mail, luggage, and other

possessions. In Chadwick, the Court

explicitly held thet the privacy interests

im euch personal effects 4o not diminish or

Giseppear when they ere temporarily located

in @ public place, rather then in a home or

" ottice At/ The Court rejected the argument

that the Warrant Clause does not apply to

“movable personality lewfully seized in a

puotic pisce,“hd/

In Senders, the Court squarely

Sejected the argument thet privacy

interests in « piece of luggage 4isaeppesred

because it was placed in an automobile

BS, », , , ‘=

ly & at 6-7,

trunk. The Court observed that “the very

purpose of « suitcase is to serve a6 4

repository for personal items when one

wighes to transport then, *42/ It also

noted that because “luggage is « common

repository for one’s personal effects...

Cit] 1s inevitably associated with the

expectation of privecy.°tt/ Robbins merely

reaffirmed this holding when it recognized

that many containers other than luggage are

also used a6 common repositories for

effects & person may reasonably wish to

heep peivace.42/ The Robbins holding, that

@ percel wrapped in opaque plastic embodies

@ reasonable expectation of privacy for

442 U.B. at 764 ("a suitcase taken

Om an automobile stopped on the highway

is not 7 pooner gh, attended by any lesser

ee ion of vacy than is associated

wi Luggage from other

locationse.”).

14/ 442 U.6. at 762 (emphasis 14464).

15/101 B. Ct. at 2845-46,

Fourth Amendment purposes, thus merely

represents an application of the general

rule of Sanders to any container located in

a motor vehicle trunk.

The government has not pointed to

anything in prior Fourth Amendment

jurisprudence which suggests -- contrary to

Chadwick, Sanders and Robbins -- that

privacy interests in containers are

surrendered when they are located

temporarily in a locked automobile trunk.

Its proposed rule would produce the

anomalous result that a container, as to

which Warrant Clause protections admittedly

attach at both ends of its journey, somehow

loses that protection while the owner

transports it in a locked vehicle trunk. 22/

16/ To the contrary, it is settled that

the Fourth Amendment applies to persons in

motor vehicles. £E.g., Delaware v. Prouse,

440 U.S. 648 (1975):

"An individual operating or

traveling in an automobile does

CFootnote continued next page]

The principle that containers do not

forfeit their Fourth Amendment protections

simply because of the place in which they

fortuitously become subject to official

scrutiny extends at least as far back as Ex

Parte Jackson, 96 U.S. 727 (1878). There,

in one of the earliest Fourth Amendment

cases, the Court held that the Warrant

Clause prohibited the warrantless search of

[Footnote continued from preceding page]

not lose all reasonable

expectation of privacy simply

because the automobile and its

use are subject to government

regulation. Automobile travel is

a basic, pervasive, and often

necessary mode of transportation

to and from one's home,

workplace, and leisure

activities. Many people spend

more hours each day traveling in

cars than walking on the streets.

Undoubtedly, many find a greater

sense of security and privacy in

traveling in an automobile than

they do in exposing themselves by

pedestrian or other modes of

travel.”

Id. at 662 (footnote omitted).

printed matter traveling through the United

States mail, and thus in the physical

possession of government saploveanie” If

a parcel suitable for mailing is protected

while being hand-carried to the post office

and while handled by postal workers, those

privacy interests certainly cannot

evaporate if it is placed in the locked

trunk of a car. But that is the rule the

government would have the Court adopt.

As Chadwick, Sanders and Robbins

correctly decided, expectations of privacy

in movable personalty cannot be found to

vary with its location. The owner of a

briefcase hardly considers that its

contents are less or more private as he

carries it from home to office. If he

considers the subject at all, he would

17/ 96 U.S. at 733. Jackson has been

reaffirmed recently in United States v. Van

Leeuwen, 397 U.S. 249 (1970).

certainly feel the contents are more secure

against unwarranted intrusion when they are

in the locked trunk of a motor vehicle than

when the case is left briefly in an

unattended conference room.

The strong privacy interests attached

to containers placed in motor vehicle

trunks are demonstrated most compellingly

by considering the effects routinely

carried there. At some point virtually

every person will use an automobile to

transport the most precious and intimate

possessions. What attorney has not

transported confidential client documents

in a document carrier placed in the luggage

compartment of a motor vehicle? What

person has not transported personal

property across town or across the country

in a motor car or moving van? Yet, the

government's proposal would make every one

of these items subject to a warrantless

search solely upon probable cause to stop

and seize the vehicle. The limited privacy

interest in automobiles under the Fourth

Amendment does not detract from the

independent privacy interest enjoyed by the

container. If anything, a container placed

in a locked trunk should be entitled to an

augmented degree of constitutional

protection.

The government's argument is fatally

flawed by its refusal to accept the Court's

decisions in Chadwick and its progeny that

reasonable privacy interests attach to

personal containers, wherever found. The

periodic reiteration of the alleged

insubstantiality of privacy interests in

paper bags in its Brief should not obscure

the breadth of the intrusion into personal

liberties its proposed “automobile trunk"

exception would condone.

2. The Automobile Exception

to the Warrant Clause

Does Not Legitimate

Warrantless Searches of

Containers in Locked

Trunks.

The government rests its argument that

Clear privacy interests should be

overridden solely upon the so-called

automobile exception to the Warrant Clause.

But it is certain that the two justi-

fications for that exception do not apply

to containers located in the trunk of an

automobile seized for probable cause.

Neither the inherent mobility of the

vehicle nor its pervasive governmental

regulation bears at all upon such

containers at that point, as Chadwick,

Sanders and Robbins recognized.

This Court has rejected the view that

motor vehicles and their contents are

exempt from Fourth Amendment principies.42/

18/ Delaware v. Prouse, supra, U.S. at

662-63 (1979) ("Were the individual subject

{Pootnote continued next page]

They may be stopped only upon probable

cause, and the Court has carefully

circumscribed the scope of searches

permitted once a vehicle has been stopped

and is in police custody .22 The police

may seize objects within plain view. oe.

And, if a custodial arrest of an occupant

is made, the police may search the

passenger compartment as an incident to the

21/

arrest.— Once the vehicle and its

[Footnote continued from preceding page]

to unfettered governmental intrusion every

time he entered an automobile, the security

guaranteed by the Fourth Amendment would be

seriously circumscribed.").

19/ See, e.g., id.; coolidge v. New

Hampshire, U.S. °

20/ + £E.g., Colorado v. Bannister, 449

U.s. 1 (1980) (per curiam).

21/ New York v. Belton, 101 S. Ct.

2660, 2664 (1981). The Court of Appeals

held that this search cannot be justified

as incident to a lawful arrest. United

States v. Ross, supra, 655 F.2d at 1169,

a we not understand the government to

argue otherwise. Before the police seized

the suppressed evidence, the officers had

reduced the property to their exclusive

CFootnote continued next page]

contents are securely in police custody and

the risk of loss of evidence and of danger

to the arresting officer have abated,

further warrantless searches are

proscribed. 22/

Accordingly, the Court in Sanders

expressly rejected the argument that the

automobile exception could justify the

warrantless search of a suitcase solely

because it was taken from an automobile

[Footnote continued from preceding page]

control, and there was no danger that the

respondent could gain access to the

container to seize a weapon or destro

evidence. See United States v. Chadwick,

Supra. 433 U.S. at 9; Chimel v. California,

-S. 752 (1969).

22/ + £E.g-. Arkansas v. Sanders, supra,

442 U.S. at 763-64; United States v.

Chadwick, supra, 433 Wes. .0G: 28 Uo ce el

ne must = drawn. In our view, when no

exigency is shown to support the need for

an immediate search, the Warrant Clause

places the line at the point where the

property to be searched comes under the

exclusive dominion of police authority.");

war v. United States, 376 U.S. 364, 376

lawfully stopped and searched on a public

street. 442 U.S. at 762. The Court

rejected the contention that the exigency

that justified detaining and seizing the

vehicle and its contents without a warrant

also authorized the subsequent, warrantless

search of the suitcase. The Court held

that “the exigency of mobility [of the

seized object] must be assessed at the

point immediately before the search." Id.

at 763. The Court found there was no such

exigency “after the police have seized the

object to be searched and have it securely

within their control." Id. Absent

independent exigent circumstances at that

point, such as danger to the police or risk

of loss of evidence, the Court held a

warrant had to be obtained, because the

narrow circumstances justifying the

warrantless seizure of the vehicle expired

with its disablement. Id. at 766. 23/

23/ These principles were applied in a

Straightforward manner in Robbins. Only

{Footnote continued next page]

Although advocating a new automobile

trunk exception, the government claims to

have no “quarrel” with this Court's

decisions in Chadwick and ganders.*/ It

attempts to distinguish those cases by

Claiming that they pertain only where law

enforcement officers have specific probable

cause focusing on a specific container

before it is placed in the crunk .22/ But,

all of these cases are “container” cases,

not “automobile” cases as the government

éeues ae Nothing in their reasoning

[Footnote continued from preceding page]

three members of the Court supported the

view urged here by the government. 101 S.

Ct. at 2851-59 (dissenting opinions of

Blackmun, J., Rehnquist, J., Stevens, J.).

24/ See Gov't Brief at 9, 15.

25/ Cf. Robbins v. California, supra,

1s. t. at owe ’ °

concurring).

26/ See See id? see Arkansas v. Sanders,

su supra, “442° U.S. at urger, °

Seneerrine) .

supports a distinction based upon the point

at which the container was viewed by the

police. Neither the expectation of privacy

vested in the container nor the exigency of

mobility would vary with that change in

circumstance.

The government cannot have its

proposed new global “automobile trunk"

exception to the Warrant Clause unless

Sanders, Robbins and (by implication)

Chadwick are overruled. As demonstrated

below, the government has not discharged

its heavy burden of proving the need for a

new category of warrantless searches. And

the fundamental principle of stare decisis

counsels against overturning these three

recent, considered dektntona a’

27/ “The doctrine of stare decisis

imposes a severe burden on the

litigant who asks us to disavow

one of our precedents. For that

doctrine not only plays an

rtant role in orderly

adjudication; it also serves the

{Footnote continued next page]

B. The Government Has Offered No Valid

Justification For Creating a Broad

“Automobile Trunk" Exception to

the Warrant Clause.

The government has advanced several .

arguments to “meet its ‘burden... to

show the existence of such an exceptional

situation’ as to justify creating a new

exception to the warrant requirement." |

Mincey v. Arizona, 437 U.S. at 390-91,

quoting Vail v. Louisiana, 399 U.S. 30, 34

(1970); see G.M. Leasing Corp. v. United

States, 429 U.S. 338, 358-59 (1977).

[Footnote continued from preceding page]

broader societal interests in

evenhanded, consistent,and

predictable application of legal

rules."

Th Washington Gas Light Co., 448

-S. ootnote tted).

Departure from this principle normally is

justified only where changes in the

historic environment or experience with the

rule erodes its validity. See trestametan}

it. Grant Co; 416 U.S. 600, 6 )

ewart, issenting). Neither reason

is applicable here.

First, the government contends that,

in the circumstances surrounding the search

of the trunk of a car seized upon probable

cause, the warrant requirement is simply a

"procedural" formality, and that the

availability of post hoc judicial review of

the officer's judgment as tc probable cause

provides an adequate substitute for prior

judicial scrutiny. Gov't Brief at 43. On

this point, the government is simply wrong.

The purpose of prior judicial scru*iny, and

the issuance of a valid warrant, is to

establish the particularity of the search

to be conducted. The government's proposed

rule presumes that particularity need never

be established when the search of an

automobile trunk is at stake. There is no

more justification to permit wholly

unparticularized and general searches of

automobile trunks than of any other area.

And, the Court concluded in Chadwick that

prior consideration by a neutral magistrate

4ai\ an indispensable predicate to a

constitutionally valid container search,

because vital Fourth Amendment interests

are offended by warrantless searches. 433

U.S. at 9.

Second, the government argues that the

suspect's arrest constitutes such a

substantial invasion of his privacy that

the minimal additional intrusion resulting

from the warrantless search of a container

found in the trunk is constitutionally

insignificant. The Court previously has

rejected this claim in, inter alia, Mincey

v. Arizona and Chimel v. California, 395

U.S. at 766-67 n.12.

Third, the government suggests that,

at least for the innocent, a prompt

warrantless search of possessions on the

street may constitute a lesser intrusion on

privacy than "a custodial arrest while a

warrant is sought . "28/ Gov't Brief at

28/ This point may be of little

Significance in practice. If the officer

[Pootnote continued next page]

25-26. As Chief Justice Burger ‘ted in

rejecting this argument in Sanders, an

individual faced with this choice may elect

to avoid detention by consenting to an

immediate warrantless search of parcels in

the trunk. 442 U.S. at 767 (concurring

opinion). But “Cinnocent] persons might

well prefer not to have the contents of

their luggage exposed in a public place.

Tey may stand on their right to privacy

and require a search warrant." Id. The

Fourth Amendment requires that the

individual have the right to make this

decision for himse1£.22/

(Footnote continued from preceding page]

has probable cause to seize a vehicle

suspected of containing contraband, prudent

law enforcement dictates, in most

instances, the detention of its occupants

pending further investigation. Thus, in

general, no additional restraint on liberty

will be imposed while a warrant is

obtained. This is clearly true here where

the respondent already had been arrested

and the car seized.

29/ The government argues that police

Officers may “prudently” decline to conduct

CFootnote continued next page]

Fourth, the government argues that

creation of a new “automobile trunk"

exception to the Warrant Clause will serve

the administrative convenience of law

enforcement officials. Gov't Brief at

43-44. The Court repeatedly and

categorically has rejected the government's

position that streamlining law enforcement

is a sufficient justification for

infringing the liberties of the public. As

the Court stated in Mincey v. Arizona:

"The investigation of crime would

always be simplified if warrants

were unnecessary. But the Fourth

Amendment reflects the view of

those who wrote the Bill of

Rights that the privacy of a

person's home and property may

not be totally sacrificed in the

name of maximum simplicity in

enforcement of the criminal law."

(Footnote continued from preceding page]

a search on the basis of consent for fear

it may later be contested. Gov't Brief at

27. The government provides no factual

basis for this bald assertion.

437 U.S. at 393 (footnote omitted). The

Fourth Amendment was intended to limit the

government's ability to make warrantless

searches. Unless the government can point

to some independent constitutional

justification for carving out an exception

to the Warrant Clause -- a burden the

government has not discharged here --

arguments as to law enforcement efficiency

alone cannot prevail over recognized

privacy rights, lest those concerns erode

the Fourth Amendment.

We also disagree with the government's

empirical assertion that requiring the

police to obtain warrants before searching

containers found in car trunks will impose

an intolerable administrative burden. As a

practical matter, the pertinent question is

whether the police should be required to

take the additional administrative step of

obtaining a search warrant from a

magistrate, while they are engaged in the

other administrative tasks necessary to

charge and process the suspect, log in the

seized vehicle, and account for any

material seized from the passenger

compartment and its occupants. See, e.g.,

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

(1976). The government does not contend

that the minimal delay necessary to obtain

recourse to a magistrate will adversely

affect its ability to obtain warrants. We

submit that recognition of Fourth Amendment

principles in these circumstances will

impose no material new obligation on the

police, especially in light of management

techniques, such as staff support and the

availability of warrants by teleptione,2—/

tnat may be introduced to simplify the

administrative process.

30/ Ped. R. Crim. Proc., Rule

4I(c)(2). .

Pinally, the government suggests that,

in addition to streamlining law

enforcement, a rule permitting warrantless

searches of all containers found in car

trunks would greatly simplify judicial

disposition of automobile search cases.

Gov't Brief at 41-47. We appreciate the

evident frustration of this Court and the

lower courts in attempting to formulate

workable rules to resolve the difficult

Fourth Amendment issues presented in

automobile search cases. For all its

simplicity, however, the government's

proposed bright-line test would strip the

public of important privacy rights it has

enjoyed since the founding of the nation.

The rule that a closed container in a

locked trunk may not be searched without a

warrant is equally unambiguous. If the

rule is made clear and followed, both law

enforcement and constitutional interests

will be furthered, and the burden of

litigation in this Court and others will be

reduced. Any rule that creates a new

Warrant Clause exemption is an invitation

to further judicial debate. 31/

II. THE FOURTH AMENDMENT'S WARRANT

REQUIREMENT APPLIES TO ALL

CONTAINERS, WHEREVER FOUND

AND HOWEVER “WORTHY” OR “UNWORTHY, “

UNLESS THEIR CONTENTS ARE

IN PLAIN VIEW.

The government asks this Court to

overrule Robbins and to limit the

applicability of Chadwick and Sanders to

luggage and other containers deemed to be

“of a kind conventionally regarded as

embcdying substantial privacy interests.”

Gov't Brief at 14. The government's

proposed “unworthy” container exception to

the Warrant Clause would extend to any such

containers whether found in an automobile,

34/ cf. Robbins v. California, supra,

TO1 s. at

concurring).

an office, a public place or the hands of

its gies Aw’ The government thus suggests

a radical departure from settled Fourth

Amendment principles.

We urge this Court to reaffirm Robbins

and to reject this proposed new Warrant

Clause exception. As we emphasize below,

the “unworthy” container rule finds no

support in either the language of the

Fourth Amendment or any interpretation of

that Amendment made by this Court, and the

government has identified no compelling

interests that support the creation of such

& new Warrant Clause exception. Wor is the

rule justified as a factual matter: the

government has failed to adduce anything

but its own assumptions to support its

assertion that no reasonable expectation of

privacy attaches to paper bags and other

22/ , fee United states v. nose, 655 ¥.24

“insubstantial” containers. Indeed,

everyday experience refutes the

government's claim.

Moreover, the “unworthy” container

rule will not provide any clear guidelines

for law enforcement officers or reviewing

courts. The factors considered relevant by

the government are so amorphous and open-

ended that such a rule would raise far more

nettlesome factual questions than it would

resolve. We respectfully submit that

Robbins and prior Fourth Amendment cases

point the way to a bright-line test that

pays due regard to constitutional

liberties, is enforceable, would not

adversely affect any law enforcement

interest, and would provide readily

understandable standards for the protection

of individual liberties and the enforcement

of law.

A. The "“Unworthy” Container Rule

Finds No Support in the History

of the Fourth Amendment or

the Decisions of This Court.

Chadwick and Sanders estabiished that

even if a warrant was not required to

search an automobile, the owner of luggage

lawfully seized has an independent,

constitutionally protected expectation of

privacy in the luggage and that a

warrantless search of the luggage was

therefore unlawful. Robbins held that the

holdings of Chadwick and Sanders applied as

well to plastic-wrapped parcels found in

the trunk of an automobile. The plurality

opinion in Robbins did no more than

reaffirm the long-established principle

that, absent exigent circumstances, a

warrant is required to search “people and

their effects, .. . whether they are

‘personal’ or ‘impersonal.'” See Robbins,

101 S. Ct. at 2846. The plurality also

considered the relationship between the

“container” rule and settled “plain view”

doctrine and concluded that all closed

containers whose contents are not readily

discernible by observation enjoy 4

constitutional protection against

warrantless searches. We submit that this

aspect of Robbins, which applies to

containers wherever they may be found, is

clearly in accordance with the language of

the Fourth Amendment and the decisions of

this Court.

As we have already shown, the

principle that the Fourth Amendment extends

to all of a person's property --

irrespective of how “private” the property

is -~ has long been established. for

example, in Boyd v. United States, 116 U.S.

616, 630 (18866), the Supreme Court

interpreted the Fourth Amendment as

outlawing, “not the breaking of his doors

and the rummaging of his drawers” but “the

invasion of his indefeasible right to

personal security, personal liberty and

private property. "23/ See Ex Parte

Jackson, 96 U.S. at 733 (1878); United

States v. Van Leeuwen, 397 U.S. at 251-52

(1970). Accordingly, although Chadwick and

Sanders involved sturdy luggage, they were

based upon these precedents that

recognized, for example, that parcels

wrapped in paper deserved protection

against warrantless governmental intrusion.

E.g., Ex Parte Jackson, 96 U.S. at 733.

Despite these unambiguous holdings,

the government maintains that a footnote to

33/ Similarly, the Court has held that

the Amendment's protections against

seizures of "papers" and “effects” are

coextensive. “There is no special sanctity

in papers, as distinguished from other

forms of property, to render them immune

from search and seizure, if only they fall

within the scope of the principles of the

cases ir. which other property may be

seized, and if they be adequately described

in the affidavit and warrant." Gouled v.

United States, 255 U.S. 298, 309 (1921).

this Court's opinion in Sanders supports

what the Court of Appeals below termed an

“unworthy” container rule.24/ The footnote

34/ The footnote provides:

"Not all containers and packages

found by police during the course

of a search will deserve the full

protection of the Fourth

Amendment. Thus, some containers

(for example a kit of burglar

tools or a gun case) by their

very nature cannot support 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 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.”

442 U.S. at 764-65 n.13 (citation omitted).

Of course, the footnote decisively

repudiates the government's claim,

addressed in Part I of this Brief, that the

[Footnote continued next page]

fails to provide any support for the

government's position. Sanders held to the

contrary: That warrantless searches are

subject only to the same "'jealously and

carefully drawn' exceptions to the warrant

requirement” that apply to any other

property. 2=/ The footnote does no more

than declare that in some instances the

contents of a container, for all practical

purposes, may be in plain view, either

because the contents are actually visible

or because they can be readily inferred

from outward appearances. It recognizes

that, when the container serves no

concealing function, its contents are not

private, and the Warrant Clause does not

{Footnote continued from preceding page]

mere placement of a container in an

autombile lowers its level of

constitutional protection.

35/ Id. at 359-60 (quoting Jones v.

United States, 357 U.S. 493, 499 (1958)).

apply.. Thus, the Sanders court merely

reconciled the holding in Chadwick with

settled plain view principles.2°/ Sanders

does not provide justification for a new

exception to the Warrant Clause for "“non-

traditional” forms of plastic, cloth or

paper containers .2_/ No member of this

36/ Justice Stewart's plurality opinion

Th Robbins explained that the Sanders

footnote carried the “negative

implication .. . that, unless the

container is such that its contents may be

said to be in plain view, those contents

are fully protected by the Fourth

Amendment.” Robbins v. California, supra,

101 S. Ct. at 2646.

37/ The government looks to Justice

ell's concurrence in Robbins as support

for a flat “unworthy container” rule

because that opinion would allow

warrantless searches only of those

containers in which the owner had

manifested no reasonable expectation of

privacy. Robbins, supra, 101 S. Ct. at

2849-50 & n.3. Under this view, a factual

inquiry would be undertaken in each case

that would focus on “the size, shape,

material and condition of the exterior, the

context within which it was discovered, and

whether the possessor had taken some

significant precaution, such as locking,

securely sealing, or binding the container,

that indicates a desire to prevent the

contents from being displayed upon simple

[Footnote continued next page]

Court in either Sanders or Robbins

indicated any desire to embrace the

government's view that containers should be

categorized as either worthy or unworthy of

constitutional protection. 22/

[Footnote continued from preceding page]

mischance." Id. n.3. The practical

difficulties of this formulation, which

necessarily entails an inquiry into the

subjective intent of the accused, are

discussed below. See Part II.C. infra.

38/ The government reitrzates several

policy considerations in support of its

“unworthy” container rule. In essence, it

argues that the warrant is a formality

whose observance should yield to the goal

of law enforcement efficiency and that, in

any event, the warrantless search of

someone's paper or plastic bag is a "lesser

intrusion" on his liberty than custodial

detention. As we have already demonstrated

in Part I above, this Court has decisively

and repeatedly held that none of these

considerations is entitled to any weight.

On numerous. occasions, this Court has

affirmed the substantial importance of the

judicial warrant. E.g., United States v.

Chadwick, supra, 433 U.S. at 9-10 (1977);

tz v. United States, supra, 389 U.S. at

- ; Camara v. nicipal Court,

supra, 387 U.S. at 532. Xessedinets the

government's efforts in this context to

denigrate the importance of the warrant by

reference to claimed policy interests

should be summarily rejected.

B. The Government Has Not

Substantiated Its Contention

That No Person Has a Reasonable

Expectation of Privacy in the

Contents of an “Unworthy" Container.

Although the absence of any

precedential support for an “unworthy”

container rule ought to settle the matter,

the government's argument suffers from an

even more fundamental defect. It concedes,

as it must, that luggage and other usual

“repositories for personal effects" are

entitled to the substantive protections of

the Warrant Clause. 22/ The government

contends, however, that there are certain

39/ We note that the government thus

accepts the red leather pouch as a “worthy”

container fully deserving of constitutional

protection, and that it “does not quarrel,"

Gov't Brief at 9, with the holdings of this

Court that vest “traditional” luggage with

such protection, even though it is very

clear that the government cannot have its

extension of the automobile exception

unless the Court overrules the very cases

with which the government does not

“quarrel.” We urge the Court not to

embrace such befuddlement.

other containers -- i.e., bags, parcels,

and boxes of paper, plastic and other

flimsy or “insubstantial” materials -- that

are so inherently lacking in "substantial

privacy expectations” that they are

undeserving of the protections of the

Warrant Clause. Gov't Brief at 14, 49.

The government advances three arguments:

First, that some possessions are “personal”

and others “impersonal” and that there is

no reasonable expectation of privacy in

impersonal material; second, that certain

containers are only “atypically” used for

transporting personal articles and are

therefore not entitled to Warrant Clause

protections; and third, that no reasonable

person would expect to keep the contents of

such containers -- whether personal or

impersonal -- screened from public view.

We agree with the government that the

Fourth Amendment preserves and protects

from governmental intrusion a person's

reasonable expectation of privacy. See

Katz v. United States, 389 U.S. at 360-61

(Harlan, J., concurring). We submit,

however, that a person has a reasonable

expectation that all his “effects, whether

they are ‘personal’ or ‘impersonal,'” will

remain private and shielded from intrusion

unless he knowingly exposes them to the

public. Robbins, 101 S. Ct. at 2846; Katz

v. United States, 389 U.s. at 351.42/ The

Fourth Amendment does not discriminate

between a container which commonly houses

the most intimate of one's belongings and

40/ The presence or absence of

constitutional protection cannot turn upon

any purported dichotomy between “personal”

and “impersonal” items. The language of

the Fourth Amendment recognizes no

distinction between “personal” and

“impersonal” effects. Indeed, the colonial

experience demonstrates that Americans

objected strenuously to seizures of

smuggled goods from local merchants --

undoubtedly “impersonal” effects. See

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

at 7-6.

one which commonly contains only the most

prosaic. Absent exigent circumstances, the

government simply has no business examining

the contents of either container without a

prior determination of probable cause by a

neutral and detached magistrate.

Everyday experience disproves the

government's claim that no reasonable

person would put anything personal or

private in a paper bag, or other similarly

flimsy container. Even the government is

forced to admit that an “unrepresentative”"

use is a “theoretical possibility.” Gov't

Brief at 36. But it urges this Court to

overlook such an “atypical use” on the

ground that if such a use is “not part of

the conventional ‘understandings that are

recognized and permitted by society,'” it

is not worthy of constitutional protection.

Id. It goes without saying that the idea

that “convention” ought to define the scope

of the Fourth Amendment is unprecedented.

Many people cannot afford or do not choose

to own the sort of “substantial” luggage

that the government views as essential to

preservation of Fourth Amendment

protections. The Warrant Clause protects

the vagrant’'s ragged shopping bag no less

than the double-locked footlocker in

Chadwick. See United States v. Ross, 655

F.2d at 1170 n.30.

In any event, the government's

proposed standard is bereft of any

foundation in fact. It has not attempted

to provide any authority to support the

startling claim that articles that their

owners wish to shield from public or

official scrutiny are not placed in flimsy

containers. People choose a wide variety

of containers for a multitude of purposes,

and these choices change constantly.

Experience demonstrates that, when

traveling on airplanes and trains, many

people carry belongings of a highly

personal nature in plastic shopping bags,

secured at the top with a drawstring and

bearing some merchant's insignia, or in the

ubiquitous luggage of choice, open-top

totebags. Although a few decades ago,

travelers may have found matched luggage a

necessity, people now transport their

possessions in insecure containers of

canvas, paper and pliable plastic. Are

Fourth Amendment protections to vary

according to whether these individual

choices are “recognized and permitted by

society"?

As for the paper bag or similar

container, its very anonymity actually

encourages its use for storing or

transporting highly private possessions.

For example, paper shopping bags are

thought by “any to be particularly suitable

for disguising bank deposits. Similarly,

it is a commonplace that some reading

materials, protected by the First

Amendment, may come into their owner's

possession in a plain brown wrapper. Thus,

in any particular case, the police cannot

know whether the “unworthy” container is

truly “unworthy” until the privacy of its

owner has already been invaded by a

warrantless search. See United States v.

Ross, 655 F.2d at 1170 & n.3l.

In fact, the government's claim that

no one puts anything private in a paper bag

is belied not only by this very case -- in

which respondent apparently placed heroin

in a brown paper lunchbag -- but also by

Robbins and a plethora of lower court

decisions involving items seized from such

containers as closed and open cardboard

boxes, sealed plastic garbage bags and

partially open plastic bags. See United

States v. Ross, 655 F.2d at 1166 & n.16;

Gov't Brief at 31 n.18. The very

controversy now before the Court proves

that “unworthy containers” are very often

“pressed into service” as repositories for

effects that people wish to conceal from

public view. See Gov't Brief at 36.

Indeed, all of us have put some of our

most treasured secrets and most intimate

possessions in “unworthy” containers when

we have put them in the mail. Yet, the

government concedes, as it must, that a

paper envelope entrusted to the United

States mails deserves the protection of the

Warrant Clause. See United States v. Van

Leeuwen, 397 U.S. at 251-52.

Finally, this Court should resist the

government's implication that as long as

the search of a container “not embodying

substantial privacy interests" does not

turn up evidence of a crime, the individual

does not have a substantial ground for

constitutional complaint. Gov't Brief at

24. An ordinary person has every right to

be incensed if his possessions, however

innocuous, are searched under color of law

in a public place. The innocent victim of

a warrantless search is injured -- indeed

irreparably injured -- even if all that the

search turns up is his "next meal." See

id. Such a search not only provokes

intimidation and fear of false arrest, but

may degrade his reputation in the most

basic sense. Cf. Bivens v. Six Unknown

Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 389-90 (1971).

Absent a warrant or some well-established

exception to the Werrant Clause, the

government is simply not entitled to know

what that person has stored in his brown

bag, however mundane those contents are.

Cc. The Government Concedes That the

“Unworthy"” Container Rule Would

Not Advance the Goals of Adminis-

trative and Judicial Efficiency.

Even if law enforcement efficiency

were a justification for undermining Fourth

Amendment protections -- which it is not --

the government has conceded a critical flaw

in its own case: That its "unworthy"

container rule will initially require "case

by case delineation of the types of

containers possesing [sic] high enough

privacy attributes to justify insistence

upon a warrant." Gov't Brief at 40. The

government in effect concedes that the

“unworthy” container rule is not a rule at

all, or at least not a rule that is

susceptible to even-handed and expeditious

application by law enforcement officials,

or by courts required to resolve the welter

of pre-trial suppression motions certain to

result.

In return for a rule that allows law

enforcement officers to rummage freely

through bags and parcels of unspecified

description, wherever found, the government

offers no countervailng administrative or

judicial efficiencies. For example,

although the government would like this

case to decide that respondent's closed but

unsealed paper bag is not worthy of the

protections of the Warrant Clause, the

treatment of a sealed paper bag would be

undetermined and ripe for further

litigation. Also left for case by case

resolution by law enforcement officers --

and for reviewing courts -- would be the

constitutional protection to be accorded

the totebag, the orange crate and the

Pillowcase. See Sanders, supra, 442 U.S.

at 772 (Blackmun, J., dissenting).

In fact, the government's proposed

rule is so vague, open-ended and

unprincipled that one cannot predict with

any degree of certainty that a paper bag

identical to the one in respondent's trunk

will not encounter an entirely different

fate in the next case. The government

concedes:

"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 ina

container ordinarily employed for

low-privacy uses as to render a

warrantless search of the

particular container

unreasonable."

Gov't Brief at 37 n.21 (citations omitted).

There can be little doubt of the import of

this admission: The government's theory

requires inquiry into the accused's

subjective intent, as revealed by the

totality of the circumstances. Thus, the

very same paper bag for which the

government seeks a reversal in this case

will come before the federal courts again.

On that later occasion, presumably, the

inquiry will be whether the owner of that

paper bag manifested a reasonable

expectation of privacy in its contents.

One can imagine how the owner will testify,

if asked at a suppression hearing.

The government argues, however, that

the Court need not concern itself here with

this “theoretical possibility" because:

“Absent such [objective factors],

however, an owner's subjective

expectation of privacy (and there

should be

ent to trigger the

warrant requirement.”

Id. (emphasis added). We find this

assertion astonishing. First, for the

reasons set forth above, it is clear that

objective criteria, such as the

characteristics of the flimsy container,

cannot reveal the privacy interests of the

owner. Second, respondent was not afforded

an opportunity to prove that he had a

subjective expectation of privacy in the

contents of the bag. Furthermore, we are

unaware of any facts in the record that

would lend any degree of plausibility to

the government's contention that respondent

did not manifest a reasonable expectation

of privacy -- whether subjective or

objective -- in the contents of the bag.

To the contrary, the facts of record show

that the bag was closed and secreted in the

locked luggage compartment of respondent's

car.

Far from establishing a bright-line

test to advance administrative and judicial

efficiency, the government's “unworthy”

container rule promises only to perpetuate

“incessant litigation" of automobile search

cases. See Robbins, 101 S. Ct. at 2850

(Powell, J., concurring). We urge the

Court to resist the government's plea for a

reversal in this particular case, on a

theory it concedes will only bring this

very issue before the courts again.

CONCLUSION

We advocate a bright-line test which

is completely consistent with the Fourth

Amendment, as construed by this Court;

easily comprehensible and enforceable by

law enforcement officials; and designed for

ease in judicial administration: If a

container found in an automobile trunk

conceals its contents, then that container

is protected by the Fourth Amendment, and

the police must obtain a search warrant

before they may search it. This rule is

supported by the language and prior

interpretations of the Fourth Amendment, is

feasible of administration, and will

substantially reduce judicial enforcement

difficulties by directing all remaining

questions to familiar and settled notions

of probable cause and the plain view

doctrine.

For the foregoing reasons, the

judgment of the Court of Appeals should be

affirmed.

Of Counsel:

Respectfully submitted,

Raymond C. Clevenger, III

Counsel of Record

John F. Cooney

Lauren B. Homer

Helen Torelli

Wilmer, Cutler & Pickering

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Counsel for Amici Curiae

Arthur B. Spitzer

American Civil Liberties Union

Fund of the National Capital Area

Charles S.

Sims

American Civil Liberties Union

Dated: January 25, 1982

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.