# Amicus Brief — United States v. Ross

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2375%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 798

## Text

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

I.

CONTAINERS FOUND IN THE LOCKED LUGGAGE
COMPARTMENT OF AN AUTOMOBILE MAY NOT
BE SEARCHED WITHOUT A WARRANT ......+--

A.

Important Expectations of Privacy
Prohibit Warrantless Searches of
Containers Located Temporarily in
the Luggage Compartment of an

Automobile eenseeeeeeneeeeeeneeeneneeee

l.

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

1l

14

14

23

Il.

ii
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

A.

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

29

37

40

47

56
61

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

Ve

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

iv

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,

Ve

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

3/

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

4/

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.

10

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

5/

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.

ll

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

12

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

13

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.

14

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.

15

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

8/

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

16

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,

17

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,

18

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]

19

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).

20

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).

21

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

22

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.

23

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]

24

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

9/

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]

25

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

26

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]

27

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]

29

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.

30

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

31

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]

32

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]

33

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.

34

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

35

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). .

36

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

37

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).

38

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

39

“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.

40

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

41

“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

42

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).

43

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]

a4

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)).

45

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]

46

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.

47

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.

48

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

49

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.

50

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

51

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

52

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

53

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

54

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

55

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.

56

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.

57

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

58

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

59

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,

60

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

61

(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

62

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2375%3A08. Public record. Not legal advice.