Respondents Brief — Illinois v. Lafayette

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ö 7 FILED

keks 9 1983

No. 81-1859

— — * —- - _ .

IN THE he

Supreme Court of the United States

OCTOBER TERM, 1982

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

RALPH LAFAYETTE,

Respondent.

On Writ Of Certiorari To The Appellate Court

Of Illinois, Third Judicial District

N BRIEF FOR RESPONDENT

a ROBERT AGOSTINELLI*

: Deputy Defender

1 PETER A. CARUSONA

. FRANK W. RALPH

QUESTIONS PRESENTED FOR REVIEW

I. Whether the inventory search of Lafayette’s shoulder

bag was unreasonable because Lafayette had a high expecta-

tion of privacy in the contents of the bag and there was no need

for the police to search inside it.

II. Whether review of the search as incident to the arrest

should be precluded since the lower court based its decision on

an adequate state ground.

III. Whether the station-house search of Lafayette’s

shoulder bag, in which he had a high expectation of privacy

independent of that in his body and clothing, can be upheld as a

delayed search incident to the arrest.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............+04-- i

eee oe ee 1

Z oc ccndedcdsesaccdesoesoscces 3

r eee esd 7

I. THE INVENTORY SEARCH OF LAFAYETTE’S SHOULDER

BAG Was UNREASONABLE BECAUSE LAFAYETTE HAD

A Hi ExrRCTATION OF Privacy IN THE CONTENTS

Or THE Bac AND THERE Was No NEED For THE

Po.ice To SEARCH INSIDE Irl iii U. 4

A. Opperman Did Not Authorize Inventory Sear-

ches Of The Contents Of Repositories Of Per-

sonal Effects, Such As Shoulder Bags, In

Which There Is A High Expectation Of Priva-

r 9

B. Opperman’s Holding That An Inventory

Search Of An Automobile Was Reasonable

Should Not Be Extended To Validate A

Station- House Inventory Of The Contents Of A

eee ese eee eee 13

1. Sealing, securing and inventorying a

shoulder bag as a unit safeguards the prop-

erty, protects the police from false claims,

maintains jail security ............ 14

2. The need to verify the identity of an arres-

tee can be accomplished in most cases by

simply making a request for identification

papers and, in any event, is not presented

on the facts of this case ............... 17

3. Other considerations in this case, includ-

ing the absence of consent to search, mili-

tate against upholding the station-house

.net 18

II. Review Or THe SearcH As INCIDENT To THE

ARREST SHOULD BE PRECLUDED SINCE THE LOWER

Court BASED Its Decision ON AN ADEQUATE STATE

re 21

iii

Table of Contents Continued

Page

III. THe StaTion-House SEARCH Or LAFAYETTE’S

SHOULDER Bac, IN WHICH HE Hap A HIGH Expecta-

TION OF Privacy INDEPENDENT OF TuHatT IN His

Bopy AND CLOTHING, CANNOT BE UPHELD As A De-

LAYED SEARCH INCIDENT To THE ARREST ........ 26

A. The Search Was Unreasonable And Beyond

The Scope Of The Search-Incident-To-Arrest

Exception Because It Was Remote In Time

And Place From The Arrest And Was Con-

ducted In The Absence Of Any Exigency Or

r aade 27

1. A warrant was required .............. 27

2. The search was unreasonable .......... 32

B. Cont To The State’s Contention, This Case

Is Not Controlled By Robinson And Edwards 35

C. Lafayette’s Expectation Of Privacy In The

Contents Of His Bag Was Not Reduced By

Virtue Of The Arrest Under The Theory That

= Bag Was Immediately Associated With His 2

i el 42

TABLE OF AUTHORITIES

CASES: Page

Abel v. United States, 362 U.S. 217 (1960) ....... 6, 36-38

Agnello v. United States, 269 U.S. 20 (1925) ......... 28

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

Bell v. Wolfish, 441 U.S. 520 (1979 ũ · ũ 10, 37

Bradford v. State, — Ind. App., 401 N.E.2d 77

%% A 13, 35

Cady v. Dombrowski, 413 U.S. 433 (1973) 15, 27, 32

Camara v. Municipal Court, 387 U.S. 523 (1967) .... 9

Cardinale v. Louisiana, 394 U.S. 437 (1969) . . 5, 20, 23-24

Chambers v. Maroney, 399 U.S. 42 (1970) ......... 28, 33

Chimel v. California, 395 U.S. 752 (1969) ........ passim

Cincinnati, N.O. & T. P. Ry. v. Slade, 216 U.S. 78 (1910) 24

City of West 8 v. Clark, 58 III. App. 3d 847, 374

Dawson v. State, 40 Md. App. 640, 395 A. 2d 160 (1978) 40

Draper v. United States, 358 U.S. 307 (19599 30

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216

% ˙ TTT 5, 28, 33-34

Farb v. State, 634 S. W. 2d 14 (Ct. App. Tex. 1982) ... 40

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) 21

Gaston v. State, 155 Ga. App. 337, 270 S.E.2d 877 (1980) 19

Harris v. United States, 331 U.S. 145 (1946) ......... 38

Henry v. Mississippi, 379 U.S. 443 (1965) ........... 22

Herb v. Pitcairn, 324 U.S. 117 (1945) ............... 5, 21

Hicks v State, 398 So. 2d 1008 (Dist. Ct. App. Fla. 1981) 13

Hinkel v. Anc e, 618 P.2d 1069 (Alas. 1980), cert.

denied, 450 U.S. 1032 (19817h)· ꝛ 40

Jenkins v. Georgia, 418 U.S. 153 (197)y9y9n 22

Jones v. State, 640 S.W.2d 918 (Crim. App. Tex. 1982) 40

Jones v. United States, 357 U.S. 493 (1958) ........ 26, 27

Kaye v. United States, 502 F. Supp. 1021 (D. Vt. 1980),

aff'd, 669 F.2d 46 (2d Cir. 1982))0!nõ- n

Table of Authorities Continued

Page

Manalansan v. State, 48 Md. App. 667, 415 A. 2d 308

1 ü —— eee 7, 12

Matter of B. K. C., 413 A. 2d 894 (D. C. Ct. App. 1980) 35

McCoy v. Shaw, 277 U. S. 302 (1928· )) 22

Michigan v. Tyler, 436 U.S. 499 (1978)))ß 23

Miller v. Superior Court, 127 Cal. App. 3d 494, 179 Cal.

Rptr. 1„4%64“„ͤßͥ̃

Mincey v. Arizona, 437 U. S. 385 (1978) 27-28

Murdock v. City of Memphis, 20 Wall. 590 (1875) .... 21

New York v. Belton, 453 U.S. 454 (1981) ....... 27-28, 32

Obermeyer v. State, 97 Nev. 158, 625 P.2d 95 (1981)... 12

Oregon v. Hass, 420 U.S. 714 (19750))j·ÿu·e 23

People v. Bayles, 82 Ill. 2d 128, 411 N.E.2d 1346 (1980),

cert. denied, 453 U.S. 923 (1981) ........... 3, 12, 25

People v. Bean, 107 Ill. App. 3d 662, 437 N.E.2d 1295

(1982), petition for cert. filed, (No. 82-948) ..... 33, 42

People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976) 12

People v. Dixon, 392 Mich. 691, 222 N. W. 2d 749 (1974) 7

People v. Fuentes, 91 Ill. App. 3d 71, 414 N. E. 2d 876

e eee

People v. Grana, 185 Colo. 126, 527 P. 2d 543 (1974) .. 12

People v. Hamilton, 74 Ill. 2d 457, 386 N. E. 2d 53

„. . 660 13, 20

At e 105 Cal. App. 3d 204, 164 Cal. Rptr. 296

People v. Haskell, 41 Ill. 2d 25, 241 N. E. 2d 430 (1968) 2, 31

People v. Helm, 89 III. 2d 34, 431 N. E. 2d 1033

0955 5 6 6 13, 15, 23, 30, 33, 35, 40

People v. Holloway, 86 Ill. 2d 78, 426 N. E. 2d 871

„„ „„ 25, 31

People v. Keller, No. 55745, Sup. Ct. IIl. (Nov. 18, 1982) 25

Table of Authorities Continued

Page

3 ee 110 Mich. App. 270, 312 N. W. 2d 225

People v. Salter, 91 Ill. App. 3d 831, 414 N.E.2d 1252

bel 12

People ex rel. Andrew v. Chicago, M. & St. P. R. R., 324

III. 43, 154 N. E. 472 (1926) ) ee eeee 24

Peters v. New York, 392 U.S. 40 (1968) ............. 39

Preston v. United States,376 U.S. 364 (1964) . 28-29, 33-34

Rakas v. Illinois, 439 U.S. 128 (1978) ............... 10

Raley v. Ohio, 360 U.S. 423 (19599)9)9)9»99 22

Reeves v. State, 599 P.2d 727 (Alas. 1979) .......... 13, 14

Shipley v. California, 395 U.S. 818 (1969) ........... 28

Smith v. State, 48 Md. App. 425, 427 A.2d 1064 (1981) 12

Snyder v. Massachusetts, 291 U.S. 97 (1933) ........ 21

Snyder v. State, 629 S.W.2d 930 (Crim. App. Tex. 1982) 40

South Dakota v. Opperman, 428 U.S. 364 (1976) .. passim

oan * — 94 N. M. 263, 609 P. 2d 345 (Ct. App.

State v. Brown, 291 Or. 642, 634 P. 2d 212 (19817 38

State v. Caraher, 293 Or. 741, 653 P. 2d 942 (1982) .. 41, 42

State v. Carner, 28 Wash. App. 439, 624 P.2d 204 (1981) 7

State v. Daniel, 589 P.2d 408 (Alas. 1979) ........... 12

State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979) ... 12

State v. Dudley, 561 S.W.2d 403 (Mo. Ct. App. 1978) 35

State v. Frazier, 318 N.W.2d 42 (Minn. 1982) ........ 18

State v. Gwinn, 301 A.2d 291 (Del. 1972) .......... 12, 15

State v. Hatfield, 364 So. 2d 578 (La. 1978) .......... 19

State v. Houser, 95 Wash. 2d 143, 622 P.2d 1218 (1980) 12

State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974) ... 13, 15

State v. Keller, 265 Or. 622, 510 P.2d 568 (1973) ..... 12

State v. Killcrease, 379 So. 2d 737 (La. 1980) ........ 19

State v. Mangold, 82 N.J. 575, 414 A.2d 1312 (1980) . 19

vii

Table of Authorities Continued

Page

State v. McDougal, 68 Wis. 2d 339, 228 N.W.2d 671

r 12, 15

State v. Morgan, 3 Kan. App. 2d 667, 600 P. 2d 155 (1979) 12

State v. Pace, 171 N. J. Super. 240, 408 A. 2d 808 (1979) 12

State v. Pender, 66 Ohio Misc. 23, 419 N. E. 2d 1141 (1980) 35

State v. Potter, — Kan. App. 2d , 648 P. 2d 1162

Fee ee eee

State v. Prober, 98 Wis. 2d 345, 297 N. W. 2d 1 (1980) 12, 18

State v. Rome, 354 So. 2d 504 (La. 1978) ............ 12

State v. Roth, 305 N.W.2d 501 (Iowa), cert. denied.

U.S. , 70 L.Ed. 2d 174 (1981) .............. 12

State v. Schmidt, 359 So. 2d 133 (La. 1978) .......... 19

State v. Slockbower, 79 N. J. 1, 397 A.2d 1050 (1979)... 8

State v. Southwell, 369 So. 2d 371 (Dist. Ct. App. Fla.

%%%õ³˙Ü¹ͤ̃ ⁵ ³n eee 19

State v. Stevens, 26 Wis. 2d 451, 132 N. W. 2d 502 (1965) 35

Steagald v. United States, 451 U.S. 204 (1981777 2⁵

Stewart v. State, 611 S. W. 2d 434 (Crim. App. Tex. 1981) 40

Stoner v. California, 376 U.S. 483 (1964) ............ 28

Terry v. Ohio, 392 U.S. 1 (1968/⸗ũ9“))ꝙ eee eeeee 28

Ulesky v. State, 379 So. 2d 121 (Dist. Ct. App. Fla. 1979) 40

United States v. Berry, 560 F.2d 861 (7th Cir. 1977),

— on dither aiate unds, 571 F. ad 2 (7th Cir.), cert.

denied, 439 U.S. 9840 (1978) ä 41

— v. Bloomfield, 594 F. 2d 1200 (8th Cir.

United States v. Bosby, 675 F.2d 1174 (11th Cir. 1982) 12

United States v. Calandrella, 605 F.2d 236 (6th Cir.),

cert. denied, sub nom., Kaye v. United States, 444

US D 34

United States v. Chadwick, 433 U.S. 1 (1977) passim

United States v. C , 428 F. Supp. 652 (S. D. Ohio),

aff'd, 564 F.2d 1 (6th Cir. 1 N 13, 16

Table of Authorities Continued

Page

United States v. Corbin, 494 F. Supp. 244 (M.D. N.C.

. . . .. . „„ 35, 40

United States v. Davis, 501 F. Supp. 23 (N. D. Ga. 1980),

ad, 647 F. 2d 1119 (5th Cir 1981) 1 7, 13, 19

United States v. Edwards, 415 U.S. 800 (1974) .... passim

United States v. Farrar, 470 F. Supp. 128 (S.D. Miss.

. 35, 40

United States v. Gooch, 603 F. 2d 122 (10th Cir. 1979) . 34

United States v. Graham, 638 F. 2d 1111 (7th Cir.), cert.

denied, 480 U.S. 1084 (1981) ......ccccccccccces 40

United States v. Hernandez-Rojas, 470 F. Supp. 1212

(E. D. N.Y.), affd, 615 F.2d 1351 (2d Cir. 1979) .. 38

United States v. Hill, 458 F. Supp. 31 (D.D.C. 1978) 12, 15

United States v. Jeffers, 342 U.S. 48 (1951) ........ 27, 32

W — v. Jones, 317 F. Supp. 856 (E. D. Tenn.

United States v. Lace, 502 F. Supp. 1021 (D. Vt. 1980),

aff'd, 669 F. 2d 46 (2d Cir. 1982))) ỹůpꝶ:: . 63.

United States v. Mills, 472 F. 2d 1231 (D.C. Cir.

c 7, 13, 19

United States v. Martinez- Fuerte, 428 U.S. 543 (1976) 15

United States v. Monclavo-Cruz, 662 F. 2d 1285 (9th Cir.

C 13, 15, 34, 40

United States v. Musick, 534 F. Supp. 954 (N.D. Cal.

United States v. Rabinowitz, 339 U.S. 56 (19499 34

* v. Rengifo-Castro, 620 F. 2d 230 (10th Cir.

United States v. Robinson, 414 U.S. 218 (1973) .... passim

United States v. Ross. U. S., 102 S. Ct.. 72

nee. 6, 29, 41

1 v. Schleis, 582 F. = 1166 (8th Cir.

Table of Authorities Continued

Page

~~“ v. Vallieres, 443 F. Supp. 186 (D. Conn.

United States v. Wilson, 636 F.2d 1161 (8th Cir.

Feen . . 8. 19

Wolfe v. North Carolina, 364 U.S. 177 (1960) 25

ey State, 569 P.2d 189 (Alas. 1977), modified, 573

P.2d 858 (Alas. FEE 7, 19

STATUTES:

Ill. Rev. Stat. ch. 110A, § 528(a) (1979) .............. 19

Ill. Rev. Stat. ch. 110A, § 341(e)(7) (1979) ........... 24

Ill. Rev. Stat. ch. 38, § 114-12(e) (1979) ............. 31

Ill. Rev. Stat. ch. 38, § 108-1 (1979) ............... 23, 30

MISCELLANEOUS:

Comment, 1968 U. Ill. L. F. 4c] 15

W. LaFave, Search and Seizure (1978 and 1982

I 7, 9, 15-16, 18, 19

Note 53 B. U. L. Rev. 858 (1973))))))))! 7

STATEMENT

The Statement of the Case in petitioner’s brief contains

unfounded assertions and inaccuracies and also omits facts

which are material to the consideration of the questions pre-

sented.

Specifically, the state asserts that the record shows that

“Respondent decided he would not make bond and instead

would spend the night in jail” (Brief for Petitioner at 3). The

testimony reveals only the following:

“THE COURT: Was Lafayette put in jail?

[Officer Mietzner] A. Yes, sir, he was.

THE COURT: Or did he post bond? He didn’t post a bond,

he went to his cell?

A. There was no bond, controlled substance.

THE COURT: No, I mean when you had him in there to

book him on the ordinance violation was he going to sit in

the jail cell or was he going to post bond?

A. He was getting undressed and going into his cell, yes,

sir.” G. K. 16).

Accordingly, the state’s assertions regarding bond are un-

founded. The record is simply silent with respect to these

matters and even whether Lafayette was offered an opportun-

ity to make bond. (See also Brief for Petitioner at 17, 25)

Another unfounded assertion in the Statement is that

Lafayette emptied his pockets “willingly” (Brief for Petitioner

at 3). Although Lafayette emptied his pockets upon an order

from the police, there is no evidence or finding that he did so

willingly (J.A. 10).

Additionally, the state omits relevant facts. At the suppres-

sion hearing, Mietzner testified that he patted the outside of

the shoulder bag, felt something inside, and then looked inside

out of curiosity and because “everything [had] to be in-

ventoried” (J.A. 12, 14-15). The officer was not in fear of his

safety when he arrested Lafayette and did not expect to find a

gun or drugs in the bag (J.A. 14-15). Mietzner also testified

that the bag could have been sealed inside an inventory or

evidence bag and locked in a locker J. A. 15). Furthermore, the

testimony reveals that more than one officer was present when

the bag was searched (J.A. 10) and that Mietzner searched the

bag without consent (J.A. 8).

Petitioner also erroneously asserts certain testimony as

fact, although contradictory testimony, which the state fails to

mention, is contained in the record. Based on Officer Mietz-

ner’s testimony, the state asserts as a fact that Lafayette “took

the purse off his shoulder, placed it on the counter and removed

a pack of cigarettes from it” (Brief for Petitioner at 4).' The

state does not report, however, that Mietzner’s testimony of

this sequence was contradicted by Lafayette’s testimony. He

testified that, when one officer grabbed him, Mietzner re-

moved the bag from his shoulder and threw it on the counter

(J.A. 7, 10). Since no finding of fact was made by the Illinois

courts regarding this conflict, the state should not assert

Mietzner’s testimony as fact.’ (See also Brief for Petitioner at

19)

The state also asserts that, at the close of the suppression

hearing, it “argued simply that there was no, [sic] ‘con-

stitutional bar to looking into [the] bag’ ” (Brief for Petitioner

at 4). Actually, as the appellate court found, the state, at the

close of the hearing, argued only that there had been a valid

inventory search (J.A. 26). This argument was made in re-

This summary of Mietzner’s testimony itself is inaccurate with

respect to the timing of the events. Mietzner actually testified that

Lafayette took the shoulder bag off his arm, removed a package of

cigarettes and then laid the bag and cigarettes on the counter (J.A.

14).

Where a trial judge makes no express findings, a reviewing court

in Illinois is bound to view the evidence based on the testimony most

favorable to the prevailing party unless it is clearly unreasonable.

People v. Haskell, 41 Ill. 2d 25, 241 N.E.2d 430, 433 (1968).

sponse to Lafayette’s assertion hat the case was controlled by

People v. Bayles, 82 Ill. 2d 128, 411 N.E.2d 1346 (1980), cert.

denied, 453 U.S. 923 (1981), a case which involved only an

inventory question. Specifically, the state argued that the

court should determine whether Bayles controlled and

whether there was an alternative way to handle the shoulder

bag (J.A. 17-18).

Finally, the state also does not accurately report the appel-

late court’s finding regarding waiver. The state asserts that

the appellate court held that it had waived the argument that

the search was incident to arrest by failing to raise it “at the

trial level” (Brief for Petitioner at 5). Actually the appellate

court held that the state waived the search-incident-to-arrest

argument by failing to raise it “at the suppression hearing”

J. A. 26-27). In this regard the state does not point out that its

trial court brief in opposition to the motion to suppress, which,

according to the state, raised the search-incident-to-arrest

question, was filed twenty days after the hearing (J.A. 1, 6,

19).

SUMMARY OF ARGUMENT

The fact of lawful arrest does not, as the state maintains,

authorize both a search incident to arrest and a full inventory of

the arrestee’s belongings. Unlike a search incident to arrest,

an inventory, which arises in a non-criminal context, is justi-

fied by the lawful custody of property and is conducted for

reasons primarily related to that property. South Dakota v.

Opperman, 428 U.S. 364 (1976). Consequently, separate con-

sideration of these theories is essential.

I. The inventory of Lafayette’s shoulder bag was un-

reasonable since the interests advanced to justify it were out-

weighed by his privacy interests in the bag. Opperman. Al-

though Opperman upheld the inventory search of a car, it did

not authorize an inventory of a repository of personal effects.

In Opperman the Court held that a routine automobile in-

ventory, found by lower courts to be essential to perform

caretaking functions, was reasonable.

Implicit in Opperman, however, is a limitation: an inventory

must be reasonable in scope. Consequently, a majority of

courts considering inventories of containers have employed

this same analysis in finding such searches unreasonable in

scope. There is a greater expectation of privacy in a container

than in an automobile and such expectation is not reduced by

virtue of an arrest. Furthermore, safeguarding a shoulder bag

presents none of the substantial burdens involved in caretak-

ing automobiles. Arkansas v. Sanders, 442 U.S. 753 (1977).

Courts have thus found virtually no need for the inventories

since the containers can be sealed, secured and inventoried as a

unit.

The state urges that Opperman be extended to authorize

station-house inventories, relying on four interests purported-

ly necessitating them: safeguarding the property, protecting

the police from claims of lost or stolen property, maintaining

jail security and preventing harm to police, and ascertaining or

verifying identity. Sealing, securing and inventorying con-

tainers as a unit adequately serve the first three interests.

Thieves, vandals, or prisoners can have no access to the locked

property. Similarly, inventorying containers without opening

them actually minimizes property claims since the contents

will never have been touched by police. The fourth interest,

the need to ascertain identity, is generally served by merely

asking for identification.

In this case there was no need to inventory the contents of

the bag. Officer Mietzner concluded that no danger existed and

the contents could easily have been safeguarded by sealing the

shoulder bag in an evidence bag and placing it in a locker.

Furthermore, the officer claimed no need to verify Lafayette’s

identity. Other facts suggesting the inventory was unreason-

able were the failures: to seek Lafayette’s consent, to advise

him of the purpose of the inventory, and to permit him to post

bond or make other arrangements for the caretaking of his

belongings. Therefore, because there was no need to inventory

the contents of Lafayette’s shoulder bag, in which he had a

substantial expectation of privacy, the inventory was un-

reasonable. The state’s contention that suppression is not re-

quired in light of the purported good faith of the police was

waived since it was not raised below. In any event, no good

faith was shown since the police procedure is contrary to estab-

lished Illinois law.

II. Review of the search as incident te arrest should be

precluded since the appellate court rejected the issue on an

adequate state ground. Herb v. Pitcairn, 324 U.S. 117 (1945).

As the state concedes, the court below based its decision

entirely on waiver, finding the state failed to raise the issue of

the search as incident to arrest in a timely fashion. The mere

discussion by the appellate court of the federal question in dicta

does not warrant review by this Court. The waiver holding was

proper since the state did not raise the issue at the suppression

hearing.

Application of the Illinois waiver rule in this case serves two

legitimate state interests since, as a result of the state’s

untimely raising of the issue, the court below was precluded

from hearing an adequate presentation of the facts and was

prevented from considering an additional state ground. Cardi-

nale v. Louisiana, 394 U.S. 437 (1969). Review of the federal

question is particularly inappropriate in light of the state’s

failure to contest the waiver issue in Illinois courts.

III. Assuming, arguendo, the issue is properly before this

Court, the search, being remote in time and place from the

arrest, was nevertheless beyond the scope of the search-

incident exception and, in any event, unreasonable. While an

arrest justifies a warrantless contemporaneous search of the

person and the area within his immediate control to remove

weapons and to prevent the loss of evidence, the scope of the

search must be consistent with these purposes. Chimel v.

California, 395 U.S. 752 (1969). Thus this Court has placed

both temporal and spatial limitations on the exceptions. Dyke

v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). United

States v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. San-

ders, 442 U.S. 753 (1977), reaffirmed these limitations. In both

cases the Court found that, in the absence of any exigency, a

)

warrant was necessary to search a container since the high

expectation of privacy in such container was not reduced by

virtue of the arrest.

Lafayette’s privacy interest in his shoulder bag was not

reduced merely because of his arrest. A warrant was required

for the delayed search of the bag since the search was not based

on any exigency and the beg was securely in the control of

police. Although the state asserts, contrary to the appellate

court finding, that the bag was not in Mietzner’s exclusive

control, the testimony to that effect was controverted and thus

cannot, under Illinois law, be accepted as fact. In any event,

the search was unreasonable in light of the surrounding cir-

cumstances. Mietzner patted the bag and did not believe any

contraband or guns were in it. Given the absence of probable

cause or any exigency, the search was particularly unreason-

able.

United States v. Robinson, 414 U.S. 218 (1973), and United

States v. Edwards, 415 U.S, 800 (1974), do not control this case

since neither case considered the propriety of the delayed

search of a repository for personal effects. Although Edwards

suggested that property carried from the place of arrest by the

arrestee may later be seized and searched, the holding was

expressly limited to the facts. Abel v. United States, 362 U.S.

217 (1960), relied on in Edwards, is distinguishable from this

case because a search begun at the time of arrest was continued

later and was limited to property the arrestee chose to bring

with him. Furthermore, Abel's continuing validity is question-

able due to its reliance on precedent subsequently overruled

and its inconsistency with Chadwick and Sanders.

The Government contends that Lafayette’s privacy interest

in his bag was reduced by virtue of the arrest because the bag

was “immediately associated with the person.” This phrase

from Chadwick refers to clothing and not repositories being

carried, such as shoulder bags. Although some courts apply a

case-by-case test based on this phrase, this test has proven to

be unworkable. In any event, this Court recognized in United

States v. Ross,. U. S., 102 S. Ct.. 72 L. Ed. 2d

572 (1982), that constitutional distinctions between containers

are impermissible. The more workable rule, which protects

privacy interests, is that advanced by Lafayette: containers

accessible to the arrestee may be searched without a warrant

at the time of arrest; however, once the accused is secured at

the station and the container removed from his reach, a war-

rant is required.

ARGUMENT

The state argues that the fact of lawful arrest of an individual

authorizes both a search incident to arrest and a full inventory

ol his belongings (Brief for Petitioner at 6). While it is true that

a lawful arrest authorizes a search incident to arrest [United

States v. Robinson, 414 U.S. 218 (1973)], the arrest itself does

not, as the state contends, also authorize an inventory search.

Virtually every court and commentator recognizes that a

station-house inventory search of an arrestee’s effects is not

authorized by virtue of the arrest or the booking process itself,

but rather by the fact that the police have lawful custody of

belongings which they must safeguard.’ Thus no inventory

search of an arrestee’s effects is authorized if the police are

without reason to maintain custody of the effects, such as when

See, e.g., United States v. Robinson, 414 U.S. 218, 258 n.7 (1973)

(Marshall, J., dissenting); United States v. Mills, 472 F.2d 1231

(D.C. Cir. 1972); Zehrung v. State, 569 P.2d 189, 193 (Alas. 1977),

modified, 573 P.2d 858 (1978); United States v. Davis, 501 F. Supp.

23 (N.D. Ga. 1980), aff'd, 647 F.2d 1119 (5th Cir. 1981); People v.

Dixon, 392 Mich. 691, 222 N.W.2d 749, 756 (1974); State v. Carner, 28

Wash. App. 439, 624 P.2d 204 (1981); Manalansan v. State, 48 Md.

App. 667, 415 A. 2d 308, 311 (1980); 2 W. LaFave, Search and Seizure

§ 5.3, at 306, and § 5.5, at 356 (1978); Note, 53 B.U.L. Rev. 858, 864

(1973). This pr.aciple is also implicit in the holdings of several other

cases. See cases infra nn. 8 & 9.

It should be noted that there was no arrest in South Dakota v.

Opperman, 428 U.S. 364 (1976). The Court upheld an inventory

search of a lawfully impounded automobile because of the caretaking

functions which were imposed upon the police.

an arrestee is released on bail or makes other arrangements for

the safekeeping of his belongings. See, e.g., United States v.

Wilson, 636 F. 2d 1161, 1165 (8th Cir. 1980); State v. Slockbow-

er, 79 N.J. 1, 397 A.2d 1050, 1055 (1979).

The reasons for conducting these searches are also different.

An inventory search may be conducted for the protection of the

owner's property and protection of the police against disputes

over lost or stolen property. South Dakota v. Opperman, 428

U.S. 364, 369 (1976). On the other hand, a search incident to

arrest is permitted in order to protect the officer from the

arrestee and to prevent the destruction of evidence. Chimel v.

California, 395 U.S. 752 (1969).

There are other fundamental differences as well. For ex-

ample, since an inventory search involves a non-criminal con-

text, its analysis does not include an examination of probable

cause or the warrant requirement. Opperman, 428 U.S. at 370

n. 5. In contrast, a search incident to arrest arises in a criminal

context and is viewed as “a traditional exception to the warrant

requirement.” Robinson, 414 U.S. at 224.

The state’s melding of these two separate theories thus is

erroneous. Each type of search merits consideration within its

own particular analytical framework.

In part I of Lafayette’s argument it will be shown that there

was no need for the police to conduct an inventory search of the

contents of the shoulder bag, in which he had a high expecta-

tion of privacy. In part II Lafayette will demonstrate that

review of the search as one incident to the arrest should be

precluded by the holding of the court below on an adequate

state ground—the waiver of this issue for failure to raise it in a

timely fashion. Finally, in part III it will be shown that the

search, in any event, was unreasonable and beyond the scope

of the search-incident-to-arrest exception to the warrant

requirement because it was remote in time and place from the

arrest and conducted without any exigency or probable cause.

I. THE INVENTORY SEARCH OF LAFAYETTE’S

SHOULDER BAG WAS UNREASONABLE BECAUSE

LAFAYETTE HAD A HIGH EXPECTATION OF

PRIVACY IN THE CONTENTS OF THE BAG AND

THERE WAS NO NEED FOR THE POLICE TO

SEARCH INSIDE IT.

The inventory “search” of the contents of Ralph Lafayette’s

shoulder bag cannot withstand scrutiny under the Fourth

Amendment standard of reasonableness—the standard which

inventory searches must meet. South Dakota v. Opperman,

428 U.S. 364 (1976). Essentially, the test for determining

reasonableness involves a balancing of the interests advanced

to justify the intrusion against the interest of the individual in

the privacy of his effects. Camara v. Municipal Court, 387

U.S. 523, 535-37 (1967); Opperman, 428 U.S. at 377-78

(Powell, J., concurring). In applying this test this Court should

examine “all the facts and circumstances of this case in light of

the principles set forth in... prior decisions.” 428 U.S. at 375.

A. Opperman Did Not Authorize Inventory Searches Of The

Contents Of Repositories Of Personal Effects, Such As

Shoulder Bags, In Which There Is A High Expectation Of

Privacy.

The Court in Opperman found that the inventory search of

the contents of a glove compartment in an automobile which

had been lawfully impounded met the reasonableness stand-

ard. It must be emphasized, however, that the instant case

involves an inventory in a different context: a station-house

‘Whether or not an inventory constitutes a “search” for Fourth

Amendment purposes would not appear to be a critical question in

this case since the state has never argued that the inventory was

exempt from the Fourth Amendment standard of reasonableness.

South Dakota v. Opperman, 428 U.S. 364, 371 n.6 (1976). In any

event, Lafayette’s position is that an inventory does constitute a

search. See South Dakota v. Opperman, 428 U.S. at 377 n.1 (Powell,

J., concurring); 428 U.S. at 385 n.2 (Marshall, J., dissenting). See

also 2 W. LaFave, Search and Seizure § 5.3, at 306 & n.23 (1978).

search of a shoulder bag pursuant to the Kankakee Police

Department’s policy to inventory “everything” that accompa-

nies an arrestee to the station (J.A. 15). The inventory in-

volved property which the police had taken from Lafayette and

not effects which were going to accompany him into the jail cell.

See Bell v. Wolfish, 441 U.S. 520 (1979).

There are fundamental distinctions between automobile and

station-house inventories. The expectation of privacy in the

contents of a shoulder bag, a repository for personal effects, is

substantially higher than that in an automobile. As was noted

by Justice Powell in a concurring opinion in Raus v. Illinois,

439 U.S. 128, 153-54 (1978): “Nothing is better established in

Fourth Amendment jurisprudence than the distinction be-

tween one’s expectation of privacy in an automobile and one’s

expectation when in other locations.” Moreover, as this Court

has recognized, the expectation of privacy in repositories

accompanying or being carried by a person at the time of arrest

is not reduced by virtue of an arrest. United States v. Chad-

wick, 433 U.S. 1, 16 n.10 (1977); Arkansas v. Sanders, 442

U.S. 753, 766-67 (1979) (Burger, C.J., concurring).°

Not only are the privacy interests distinct, but the need to

conduct a search in each type of inventory is different. Unlike

the significant burdens and specific problems involved in the

caretaking of automobiles, which make an inventory search

essential, no comparable burdens or problems are involved in

saleguarding repositories of personal effects such as shoulder

bags. Arkansas v. Sanders, 442 U.S. at 765n.14. Accordingly,

»The Government, in its amicus brief, argues that “privacy con-

cerns have little relevance in the case of routine inspection of the

contents of a container for purposes unrelated to seeking evidence of

a crime” (Brief for Government at 26). This argument is an anomaly,

since it is absurd to argue that Fourth Amendment privacy protec-

tions fully apply only to an individual suspected of criminal behavior.

See Opperman, 428 U.S. at 385 n.2 (Marshall, J., dissenting).

there is no need to conduct an inventory of the contents of a bag

to be kept at the station.

A close look at Opperman demonstrates that its holding is

limited to its facts and does not authorize the search of reposi-

tories of personal effects. In Opperman, the Court concluded

that routine inventory searches of the contents of lawfully

impounded automobiles were reasonable. Interests recognized

to justify such intrusions included: (1) protection of the owner’s

property while it remains in police custody; (2) protection of

the police against claims or disputes over lost or stolen prop-

erty; and (3) protection of the police from potential danger.“ 428

U.S. at 369. These interests favoring intrusion were found to

outweigh the citizen’s interest in the privacy of the contents of

his automobile, particularly since that privacy interest was

recognized to be significantly less than the expectation of

privacy associated with one’s home. The Court noted that the

practice of inventorying the contents of an automobile had

been almost uniformly found by the states to be “essential to

respond to incidents of theft or vandalism.” 428 U.S. at 369.

With respect to the record before it in Opperman, the Court

upheld the routine inventory search of the contents of a glove

compartment. The Court noted that the car had been legally

impounded, the owner was not present to make other arrange-

ments for the safekeeping of his belongings, and the routine

inventory was prompted by the presence in plain view of

certain valuables. 428 U.S. at 375.

The Court also found, in footnote ten, that “(t]he inventory

was not unreasonable in scope.” 428 U.S. at 376 n.10. The

principle implicit in this footnote, that the scope of an invento-

ry search is not unlimited, was addressed as well in the con-

curring and dissenting opinions. Justice Powell, in a concur-

The Court also noted the frequent need to determine whether a

vehicle had been stolen and thereafter abandoned. 428 U.S. at 369.

This interest does not apply to a station-house ii ventory of an arres-

tee’s effects and is not presented on the facts or claimed by the state.

ring opinion, observed that the Court’s holding provided no

general license for the police to examine all the contents of

automobiles, such as letters or checkbooks. 428 U.S. at 380 &

n.7. Justice Marshall, in a dissenting opinion, agreed with

Justice Powell’s observation and noted that the Court’s opinion

did not authorize the search of containers which could be sea-

led, removed and secured without further intrusion. 428 U.S.

at 388 n.6. Consistent with these statements, a majority of

courts which have addressed the question have concluded that

an inventory search of luggage and other removable containers

in a vehicle is unreasonable in scope.’

United States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979);

United States v. Hill, 458 F. Supp. 31, 33-37 (D. D. C. 1978); State v.

Prober, 98 Wis. 2d 345, 297 N.W.2d 1, 7 (1980); United States v.

Vallieres, 443 F. Supp. 186, 191 (D. Conn. 1977); State v. Pace, 171

N.J. Super. 240, 408 A.2d 808, 813 (1979); State v. Houser, 95 Wash.

2d 143, 622 P.2d 1218, 1226-28 (1980); State v. Downes, 285 Or. 369,

591 P.2d 1352 (1979); State v. Brumlett, 94 N. M. 263, 609 P.2d 345,

347-48 (Ct. App. 1980); Obermeyer v. State, 97 Nev. 158, 625 P. 2d 95,

96-97 (1981); Manalansan v. State, 48 Md. App. 667, 415 A. 2d 308

(1980); Smith v. State, 48 Md. App. 425, 427 A.2d 1064, 1065 (1981);

People v. Grana, 185 Colo. 126, 527 P.2d 543, 545 (1974); State v.

Keller, 265 Or. 622, 510 P.2d 568, 570 (1973); State v. McDougal, 68

Wis. 2d 339, 228 N.W.2d 671, 678 (1975); State v. Gwinn, 301 A.2d

291, 294 (Del. 1972); People v. Counterman, 192 Colo. 152, 556 P.2d

481, 485 (1976); People v. Miller, 110 Mich. App. 270, 312 N.W.2d

225, 228 (1981); State v. Roth, 305 N.W.2d 501 (Iowa 1981), cert.

denied. U. S., 70 L. Ed. 2d 174 (1981); People v. Bayles, 82

Ill. 2d 128, 411 N.E.2d 1346, 1352 (1980), cert. denied, 453 U.S. 923

(1981); State v. Morgan, 3 Kan. App. 2d 667, 671, 600 P.2d 155, 159

(1979); State v. Potter. Kan. App. 2d , 648 P.2d 1162, 1165

(1982); People v. Salter, 91 Ill. App. 3d 831, 414 N.E.2d 1252, 1255

(1980); State v. Daniel, 589 P.2d 408, 417 (Alas. 1979). See Amicus

Brief by California Public Defender at 20, where it is explained that a

majority of the Court in Opperman shared the view that there are

limits on the scope of automobile inventory searches. See also United

States v. Bosby, 675 F.2d 1174, 1179-80 (11th Cir. 1982); State v.

Rome, 354 So. 2d 504 (La. 1978).

Opperman thus does not authorize the search of contents of

repositories such as shoulder bags. Nor has it been read to

provide such authorization.

B. Opperman’s Holding That An Inventory Search Of An

Automobile Was Reasonable Should Not Be Extended To

Validate A Station-House Inventory Of The Contents Of

A Shoulder Bag.

Numerous courts which have consic2red a station-house

search of the contents of an arrestee’s repositories of personal

effects have found it to be beyond the scope of a permissible

inventory.“ These courts find that there is virtually no need to

search the contents of the containers since they can simply be

sealed, secured and inventoried as a unit. This caretaking

procedure is found to be workable and reasonable by these

courts.

The state, nevertheless, urges this Court to extend Opper-

man’s holding to station-house inventory searches of the con-

tents of luggage and other repositories. The various interests

that are advocated by the state as grounds for conducting an

inventory search of the contents of a repository for personal

effects such as shoulder bag are (1) protection of the owner’s

property while it remains in police custody; (2) protection of

the police against claims or disputes over lost or stolen prop-

8 United States v. Monclavo-Cruz, 662 F. 2d 1285, 1288-90 (9th Cir.

1981); United States v. Schleis, 582 F.2d 1166, 1172-73 (8th Cir.

1978); United States v. Cooper, 428 F. Supp. 652, 654-55 (S. D. Ohio),

aff'd, 564 F.2d 100 (6th Cir. 1977); United States v. Davis, 501 F.

Supp. 23, 26 (N. D. Ga. 1980), aff'd, 647 F.2d 1119 (5th Cir. 1981);

State v. Kaluna, 55 Haw. 361, 520 P.2d 51, 60-62 (1974); Reeves v.

State, 599 P.2d 727, 735-36 (Alas. 1979); Bradford v. State. Ind.

App., 401 N.E.2d 77, 80 (1980); People v. Helm, 89 Ill. 2d 34, 431

N.E.2d 1033, 1034-35 (1981); Hicks v. State, 398 So. 2d 1008, 1010

(Dist. Ct. App. Fla. 1981). See also United States v. Mills, 472 F.2d

1231, 1240-41 (D.C. Cir. 1972); People v. Hamilton, 74 Ill. 2d 457, 386

N.E.2d 53 (1979).

erty; (3) the need to maintain jail security and prevent harm to

the police; and (4) the need to ascertain or verify the identity of

the person arrested (Brief for Petitioner at 7, 24-25).

There is virtually no need, however, for the police to search

inside a shoulder bag in order to advance these interests.

Sealing, securing and inventorying the bag as a unit achieves

the first three interests and the fourth interest—the need to

verify identity—in most cases will be advanced by simply

asking the arrestee to produce identification.

1. Sealing, securing and inventorying a shoulder bag as a

unit safeguards the property, protects the police from

false claims, and maintains jail security.

The interests generally recognized to justify an inventory—

protection of the owner’s property, protection against claims of

lost or stolen property, and maintenance of jail security to

prevent escape and harm—are served by sealing, securing and

inventorying the property as a unit. In the first place, sealing,

securing and inventorying a container as a unit, without in-

ventorying its contents, safeguards the police from claims or

disputes over lost or stolen property. The police are actually

less likely to be accused of theft or loss of the contents if the

container “has never been opened and its contents have never

been removed, reshuffled and replaced.” United States v.

Bloomfield, 594 F.2d 1200, 1202 (8th Cir. 1979). As Professor

LaFave has noted:

“False claims cannot be avoided and seem more likely

when the contents are handled and inventoried (a time

when, the owner might later claim, some of his property

was taken), as compared to when the container is immedi-

ately sealed.” 2 W. LaFave, Search and Seizure § 5.5, at

360 n.50 (1978). See Opperman, 428 U.S. at 378-79

(Powell, J., concurring); U.S. at 391 (Marshall, J.,

dissenting).

Moreover, since he inventory of an arrestee’s effects is

generally conducted in his presence at the station house, the

police can obtain his signature acknowledging the correctness

of the inventory. Reeves v. State, 599 P. 2d 727, 736-37 (Alas.

1979). It has even been suggested that the police might require

the arrestee to sign a waiver releasing them of responsibility

for the contents of unopened items. State v. Kaluna, 55 Haw.

361, 520 P.2d 51, 61-62 (1974); See United States v. Robinson,

414 U.S. 218, 258 n.7 (1973) (Marshall, J., dissenting).

Furthermore, safeguarding property as a unit places no

burden on the police. In the first place, the police already

perform similar functions, such as that associated with the

caretaking of evidence. Secondly, simply listing “one shoulder

bag” on an inventory sheet is less burdensome than listing the

bag as well as its contents. See United States v. Hill, 458 F.

Supp. 31, 37 (D.D.C. 1978).

A majority of the courts addressing this question thus recog-

nize, as did the appellate court in this case, that securing

containers of personal effects as a unit is better than inventory-

ing the contents of the container.’ Indeed, as the appellate

court in this case found, there was no need to search inside

Lafayette’s shoulder bag because there were both inventory

bags, in which to seal it, and lockers, in which to secure it . A.

15).

See, e.g., United States v. Monclavo-Cruz, 662 F.2d 1285, 1289

(9th Cir. 1981); State v. Gwinn, 301 A.2d 291, 294 (Del. 1972); People

v. Helm, 89 lll. 2d 34, 431 N.E.2d 1033, 1035 (1981); State v. McDoug-

al, 68 Wis. 2d 399, 228 N.W.2d 671, 678 (1975). See cases cited in nn. 7

& 8. See also 2. W. LaFave, Search and Seizure § 7.4, at 571-72

(1978); Comment, 1968 U. Ill. L. F. 401, 407-08 and additional cases

cited in Amicus Brief by California Public Defender at 26-27.

The Government in its amicus brief cites Cady v. Dombrowski,

413 U.S. 433 (1973), and United States v. Martinez-Fuerte, 428 U.S.

543 (1976), and argues that the reasonableness of an inventory does

not depend on whether the police interests in making the intrusion

can be accomplished by less intrusive means, such as securing the

repositcry as a unit (Brief for Government at 25). A careful reading of

the cited cases shows that the Court was referring to less intrusive

means which were unreasonable by virtue of their prohibitiv cost or

the heavy burden they would involve. This is the precise point

Denying access to an arrestee’s effects also safeguards the

property, maintains jail security and prevents harm. Given the

nature of a police station, there is no danger that objects will be

obtained from a secured property room or locker and used to

attempt an escape or cause harm to the police. Nor is there any

risk that vandals might obtain a weapon or steal or damage the

arrestee’s effects. See United States v. Cooper, 428 F. Supp.

652, 654 (S.D. Ohio 1977); 2 W. LaFave, Search and Seizure

§ 5.5, at 360 n.50 (1978). Cf. 2 W. LaFave, Search and Seizure

§ 7.4, at 572 (1978) (risk of danger in automobile context ques-

tioned). This situation thus provides a sharp contrast to that in

Opperman, where inventory searches of automobiles were

considered to be “essential to respond to incidents of theft and

vandalism.” 428 U.S. at 369.

Moreover, protecting the police from potential booby-traps

and explosives would be better accomplished by securing the

container as a unit. As one court has noted, it would be fool-

hardy to blindly and routinely search every container for ex-

plosives and booby-traps. United States v. Cooper, 428 F.

Supp. 652, 655 (S. D. Ohio 1977). See 2 W. LaFave, Search and

Seizure § 5.5, at 360 n.50 (1978).

This is not to say that all repositories being inventoried may

never by searched to check for explosive devices. If the police

have reason to believe that a certain repository contains some

immediately dangerous instrumentality, then it should be

searched in a professional manner. United States v. Chadwick,

433 U.S. 1, 15 n.9 (1977).

This case, however, does not contain any exigent circum-

stances. Lafayette was arrested at the local Town Cinema for

disturbing the peace. The arresting officer was not in any fear

recognized in Opperman, i.e., that the less intrusive alternative of

posting a security guard at the car-impound lot would be prohibitive-

ly expensive. 428 U.S. at 379 (Powell, J., concurring). “No compara-

ble burdens are likely to exist with respect to the seizure of personal

luggage.” Arkansas v. Sanders, 442 U.S. at 765 n.14.

of his safety and did not find it necessary to conduct a pat-down

search of Lafayette or his shoulder bag (J.A. 9, 14-15). At the

station, Mietzner took possession of the bag and patted it from

the outside. Feeling that something was inside, he searched

the contents (J.A. 12, 14). He did not expect to find drugs or a

gun inside, but conducted the search out of curiosity and be-

cause “everything” had to be inventoried (J.A. 14-15). The

facts thus militate against any suggestion that the shoulder

bag contained some immediately dangerous instrumentality."

Accordingly, a search inside the shoulder bag was not

needed to safeguard the property, protect the police from false

claims, or maintain jail security since the officer could have

simply inventoried the bag as a unit, sealed it in a bag, and

secured it in a locker.

2. The need to verify the identity of an arrestee can be accom-

plished in most cases by simply making a request for

identification papers and, in any event, is not presented on

the facts of this case.

In most cases it simply is not necessary to search the con-

tents of an arrestee’s repositories for personal effects in order

to ascertain or verify his identity. If the police do not personal-

ly know the arrestee, they can ask him for identification, such

as a driver’s license. Certainly it would be unreasonable for the

police to search all of an arrestee’s personal effects, posses-

The state cites United States v. Robinson, 414 U.S. 218 (1973),

and argues that this Court should ignore the facts which show that

there was no danger in this case. Robinson, however, has no applica-

tion here. In Robinson, the Court upheld a search of a person at the

time of his lawful arrest without requiring any assessment of

whether there was cause to search for weapons or evidence because

the determination to search was “necessarily a quick ad hoc judg-

ment.” 414 U.S. at 235. In conducting an inventory search at the

station house, however, the police are not presented with a criminal

context or the dangers which exist at the time of arrest. Nor are the

police required to make quick judgments.

sions and papers, in order to verify identity, without first

asking the arrestee to produce some identification. A rule

allowing a search to verify identity could easily be abused and

serve as a pretext for a general search. See State v. Frazier,

318 N.W.2d 42, 44 n. 1. (Minn. 1982); 3 W. LaFave Search and

Seizure § 9.4(g) (1982 Supp.). Of course, a fingerprint check,

perhaps the best method to verify identify, is available to the

police in situations where they are doubtful of the arrestee’s

true identity.

In any event, this case does not present this question. The

state has never advanced this need nor does the record support

a claim that the search was based upon the need to identify

Ralph Lafayette as the person arrested. Accordingly, this

potential interest is irrelevant in this case. See State v. Prober,

98 Wis. 2d 345, 297 N.W.2d 1, 11 (1980). Indeed the officer

might have known Lafayette personally or might have asked

for and received identification papers, such as an Illinois driv-

er’s license, which bears a photograph.”

3. Other considerations in this case, including the absence of

consent to search, militate against upholding the station-

house inventory.

Additional factors in this case support a finding of

unreasonableness. For example, the inventory was conducted

without Lafayette’s consent and he was not advised of the

purpose of the inventory (J.A. 7-8). Moreover, he apparently

was not given an opportunity to make other arrangements for

the safekeeping of his belongings or informed of his right to

post a cash bond to obtain his release. Furthermore, since

The Government suggests that “the permissibility of conducting

a routine inventory should not turn on. . . the facts of a particular

case” (Brief for Government at 23-24). This position ignores the test

applied in Opperman, 428 U.S. at 375. Evidently, the Government

advocates such an approach, which would have this Court ignore the

facts of this case, because it cannot argue that the search was reason-

able, given those facts.

Lafayette was arrested for a petty offense, the police would

very likely have retained custody of his belongings for only a

short period of time until he was able to post a bond.” See

United States v. Davis, 501 F. Supp. 23, 26 (N.D. Ga. 1980),

aff'd, 647 F.2d 1119 (5th Cir. 1981).

All of these factors show the search was unreasonable.

Certainly, it would have been consistent with Fourth Amend-

ment principles to seek Lafayette’s consent, advise him of his

right to post bond, and provide him an opportunity to have

someone retrieve his belongings. Lower courts recognize that

these factors merit great weight and find inventory searches to

be unreasonable where the arrestee was not asked for consent

or given an opportunity to post bail or to make other arrange-

ments for the caretaking of his belongings."

One final matter merits attention. The state argues that the

evidence should not be suppressed because, according to the

Lafayette was arrested for disturbing the peace, a petty offense

and an ordinance violation (J.A.8-9, 13, 21). Under Illinois law he

could have obtained his release by posting a $50.00 cash bail. See Ill.

Rev. Stat. ch. 110A, § 528(a) (1979).

In the amicus brief filed by Americans for Effective Law Enforce-

ment on behalf of the state, the amicus reproduces a property index

card which purportedly was signed by Lafayette. Although this card

is not part of the record, it is interesting to note that it indicates

Lafayette had $79.00 and thus could have posted bail. See Brief by

Americans for Effective Law Enforcement at 10.

4 See, e.g., Zehrung v. State, 569 P.2d 189, 193 (Alas. 1977),

modified, 573 P.2d 858 (1978); United States v. Mills, 472 F.2d 1231

(D.C. Cir. 1972); United States v. Wilson, 636 F. 2d 1161, 1165 (8th

Cir. 1980); Stete v. Killcrease, 379 So. 2d 737 (La. 1980); State v.

Hatfield, 364 So. 2d 578 (La. 1978); State v. Schmidt, 359 So. 2d 133

(La. 1978); State v. Mangold, 82 N.J. 575, 414 A.2d 1312 (1980);

Gaston v. State, 155 Ga. App. 337, 270 S.E.2d 877 (1980); State v.

Southwell, 369 So. 2d 371 (Dist. Ct. App. Fla. 1979). See also, 2 W.

LaFave, Search and Seizure § 7.4, at 571 (1978) (“[TJhere is much to

be said in favor of the proposition that the police should [conduct an]

state, the police maintained a good-faith belief that they acted

reasonably in searching inside the bag (Brief for Petitioner at

25-26).

Lafayette’s response is twofold. In the first place, the state

has waived this contention by never raising it before. See

Cardinale v. Louisiana, 394 U.S. 437 (1969), and part II of this

brief. Secondly, the Kankakee Police Department policy that

“everything [must] be inventoried” (J.A. 15) conflicts with

Illinois law as it existed at the time the inventory was con-

ducted in this case, September 1, 1980 (J.A. 7). Since 1979 it

has been clear that repositories of personal effects should be

inventoried as units without searching their contents. People

v. Hamilton, 74 Ill. 2d 457, 386 N.E.2d 53 (1979); People v.

Bayles, 76 Ill. App. 3d 843, 395 N.E.2d 663 (1979), aff'd, 82 Ill.

2d 128, 411 N.E.2d 1346 (1980), cert. denied, 453 U.S. 923

(1981). Given the status of Illinois law, the state’s suggestion of

good faith is puzzling.

In sum, the state’s position that Opperman’s holding should

extend to this case should be rejected. As Lafayette has

shown, he had a high privacy interest in the contents of his bag.

Moreover, in contrast to the essential need to conduct auto-

mobile inventories, the police had no need to search inside his

bag in order to achieve inventory objectives. The state’s posi-

inventory . . when the owner . is at hand only if he elects that

alternative.”)

The need for the owner’s consent was advocated by the dissent in

Opperman, but rejected in the opinion of the Court since the lack of

consent apparently would not protect the police from claims of lost or

stolen property or protect the public from vandals who might obtain a

firearm. 428 U.S. at 376 n.10. This reasoning would not apply to an

inventory search of an arrestee’s shoulder bag conducted at the police

station in his presence and without his consent. Unlike automobiles,

the bag can be secured within the confines of the station and pro-

tected from theft, loss and vandals. The consent theory advanced by

the dissent in Opperman thus merits renewed consideration.

tion ignores the fundamental distinctions that exist between

these two types of inventories. Its argument that Opperman’s

holding should extend to this case because the station-house

search was an “inventory” conducted pursuant to “routine

procedure” essentially amounts to an indiscriminate use of

labels to avoid a serious constitutional question. Justice Cardo-

zo described this use of labels as follows:

“A fertile source of perversion in constitutional theory

is thet y of labels. . . [A] court frames a rule which is

general in form, though it has been wrought under the

pressure of particular situations. Forthwith another

situation is placed under the rule because it is fitted to the

words, though related faintly, if at all, to the reasons that

brought the rule into existence.” Snyder v. Mas-

sachusetts, 291 U.S. 97, 114 (1933).

Because Lafayette’s privacy interest outweighed the need for

the intrusion, the search was unreasonable. Consequently, the

judgment of the appellate court should be affirmed.

II. REVIEW OF THE SEARCH AS INCIDENT TO THE

ARREST SHOULD BE PRECLUDED SINCE THE

LOWER COURT BASED ITS DECISION ON AN ADE-

QUATE STATE GROUND.

As an alternative argument, the state contends that, even if

the search of Lafayette’s shoulder bag was not a valid invento-

ry search, it nevertheless was justified as a delayed search

incident to his arrest. This additional question should not be

reached since it was rejected by Illinois courts on an adequate

and independent state ground, i.e., the Illinois rule that an

issue is waived if not raised in a timely fashion.

From its foundation this Court has adhered to the principle

that it will not review judgments of state courts that rest on

adequate and independent state grounds. Murdock v. City of

Memphis, 20 Wall. 590, 636 (1875); Fox Film Corp. v. Muller,

296 U.S. 207 (1935). In Herb v. Pitcairn, 324 U.S. 117, 126

(1945), the Court, recognizing the limitations on its jurisdiction

resulting from the partitioning of power between the state and

federal judicial systems, explained:

Ojur power is to correct wrong eo not 8 revise

opinions. We are not permitted to render an advisory

opinion, and if the same judgment would be rendered by

e state court after we corrected its views of Federal

— our review could amount to nothing more than an

advisory opinion.

Furthermore, this Court has consistenly found state procedu-

ral rules, including waiver rules, to provide an adequate and

independent basis for a judgment, so long as enforcement of

the rule serves a legitimate state interest [Henry v. Mississip-

pi, 379 U.S. 448, 447 (1965)], or at least is not arbitrary or a

mere device to prevent review of the federal question [McCoy

v. Shaw, 277 U.S. 302 (1928)].

The appellate court opinion demonstrates that the sole basis

for its rejection of the search-incident-to-arrest theory was

waiver: “[W]e find the State has waived this argument for the

purposes of appeal by failing to raise it at the suppression

hearing” (J.A. 27). After this direct statement of its holding,

the court went on to express its opinion that the search-

incident theory did not apply, prefacing its discussion with the

statement: “Moreover, even assuming, arguendo, that the

State has not waived this argument, the. . . search. . . did not

constitute a valid search incident to a lawful arrest” (J.A. 27).

Thus, the discussion of the federal question was merely dicta.

Indeed, the state concedes this point in its brief, admitting that

the appellate court, after it “held” the argument waived, mere-

ly “noted . . . that even if the argument was raised, the search

violated the fourth amendment” (Brief for Petitioner at 5)

(emphasis added). See also Petition for Cert. at 4.

The state contends that the appellate court, while finding

waiver, nevertheless went on to “discuss” the question of

search incident to arrest (Brief for Petitioner at 13). However,

as the cases relied upon by the state make clear, the mere

discussion of a federal question does not warrant review by this

Court. Jenkins v. Georgia, 418 U.S. 153 (1974); Raley v. Ohio,

360 U.S. 422 (1959). Only where the state court has reached

and decided the question is review permitted.

It is significant that the state does not contend that applica-

tion of the Illinois waiver rule does not serve a legitimate state

interest. See Michigan v. Tyler, 436 U.S. 499, 512 n.7 (1978).

Indeed two state interests are apparent in this case. Because

the state failed to advance its claim in a timely fashion, the

record is insufficient for a proper determination of the federal

question. As the Court recognized in Cardinale v. Louisiana,

394 U.S. 437, 439 (1969), “Questions not raised below are those

on which the record is very likely to be inadequate, since it

certainly was not compiled with those questions in mind.””

A second legitimate interest in enforcement of the rule lies in

the fact that the state’s untimely raising of the issue precluded

the defendent from advancing, and the trial court from con-

sidering, an adequate and independent ground baseé on Illi-

nois substantive law. As this Court has consistenly recognized,

states are free to impose greater restrictions under their own

law on police activity than those required under the federal

constitution. Oregon v. Hass, 420 U.S. 714 (1975). In Illinois a

search incident to arrest is justified only when conducted for

any of four purposes specifically enumerated by statute:

protection of police from attack, prevention of escape, discove-

ry of fruits of the crime, or discovery of evidence or an in-

strumentality of a crime. Ill. Rev. Stat. ch. 38, § 108-1 (1979);

People v. Helm, 89 Ill. 2d 34, 431 N.E.2d 1033, 1034 (1981).

Because the record indicates that none of the four purposes

15 For example, while the state claims that the bag was not in

Mietzner’s exclusive control immediately prior to the search (Brief

for Petitioner at 15, 19-20), the record does not reveal the exact

circumstances at that time, such as the distance between Lafayette

and the bag and the number of officers who were present. Similarly,

although the Government alleges that the bag was not like luggage

(Brief for Government at 15-18), the record is silent as to its exact

size, shape or construction. See III-C infra.

were served by the search of Lafayette’s shoulder bag, the

search violated Illinois law. Yet, since the state did not raise

the issue at the hearing, Lafayette was precluded from advanc-

ing this argument or even adducing evidence on this point.

Thus, this is the type of situation, described in Cardinale v.

Louisiana, 394 U.S. at 439, in which the failure to raise an

issue in a timely manner in the trial court has precluded consid-

eration of an adequate state ground.

Another justification for finding the waiver holding to be an

adequate state ground lies in the fact that the state contested

neither Lafayette’s waiver argument nor the appellate court’s

waiver ruling in Illinois courts. The state raised the issue in its

original brief in the appellate court. At that time no explana-

tion was provided for the failure to present the issue at the

suppression hearing. Although Lafayette, in his brief, argued

that the issue had been waived, the state did not respond, filing

no reply brief and presenting no oral argument to the appellate

court. Under Illinois law, the state may be deemed to have

admitted the validity of the defense argument by failing to

make a response. People ex rel. Andrew v. Chicago, M. & St.

P. R.R., 324 Ill. 43, 154 N. E. 472, 473 (1926); City of West

Chicago v. Clark, 58 Ill. App. 3d 847, 374 N.E.2d 1277, 1282

(1978); fil. Rev. Stat. ch. 110A, § 341(e)(7) (1979).

Furthermore, the state did not challenge the appellate

court’s finding of waiver in Illinois courts. No petition for

rehearing was filed with the appellate court nor was the point

included in the state’s petition for leave to appeal to the Illinois

Supreme Court. In fact, the state has addressed the issue of

waiver for the first time in its brief in this Court. In concluding

that no federal question was presented in Cincinnati, N.O. &

T.P. Ry. v. Slade, 216 U.S. 78 (1910), the Court found it

significant that the plaintiff in error never challenged the non-

federal ground relied upon the court below. Since the state in

the instant case has also neglected to seek review of the state

ground upon which the decision was based, this Court should

decline to consider the federal question argued by the state.

The state suggests in its brief that the issue was, in fact,

raised at the hearing. However, the sole justification advanced

by the state at the suppression hearing was that it was a proper

inventory search J. A. 17-18). The only case cited by either

side was People v. Bayles, 82 Ill. 2d 128, 411 N.E.2d 1346

(1980), cert. denied, 453 U.S. 923 (1981), a case dealing ex-

clusively with the propriety of an inventory search. Indeed all

comments of the court and counsel related to this point. In

claiming the issue was raised, the state points to its statement

that t he question is is there a constitutional bar to looking

into that bag” (J.A. 18). However, this very general statement

of the issue hardly alerted either Lafayette or the trial court

that the state was seeking to justify the search as incident to

the arrest.

The state also contends that the issue was raised in its trial

court brief in opposition to the suppression motion. However,

the state’s brief was not filed until 20 days after the hearing,

thereby denying Lafayette the opportunity to adduce evidence

relating to this issue or to advance alternative state grounds.“

Consequently, when the state on appeal sought to justify the

search as incident to the arrest, the appellate court properly

invoked the long-standing Illinois rule that points not pre-

sented to the trial court in a timely manner cannot be con-

sidered on appeal J. A. 27, citing People v. Fuentes, 91 Il.

App. 3d 71, 414 N.E.2d 876 (1980)). See People v. Holloway, 86

6 The state has mistakenly placed great reliance on Steagald v.

United States, 451 U.S. 204 (1981), a ease involving a federal pro-

cedural default rule. The discussion of waiver in Steagald is not

binding on Illinois, which is free to adopt its own procedural rules.

Wolfe v. North Carolina, 364 U.S. 177 (1960). Even were the reason-

ing of Steagald to be applied here, it would preclude review of the

federal question since the question was not raised “in a timely fashion

during the litigation.” 451 U.S. at 209. People v. Keller, No. 55745,

Sup. Ct. Ill. (Nov. 18, 1982), also relied upon by the state, is in-

apposite because, unlike the instant case, it involved an issue raised

for the first time on appeal by the party which prevailed below.

Ill. 2d 78, 426 N.E.2d 871 (1981). Therefore, because the court

below rejected the search-incident-to-arrest theory on this

adequate state procedural ground, which served legitimate

state interests, Lafayette urges this Court to decline to review

the search as one incident to arrest.

III. THE STATION-HOUSE SEARCH OF LAFAYETTE’S

SHOULDER BAG, IN WHICH HE HAD A HIGH Ex-

PECTATION OF PRIVACY INDEPENDENT OF

THAT IN HIS BODY AND CLOTHING, CANNOT BE

UPHELD AS A DELAYED SEARCH INCIDENT TO

THE ARREST.

Even if this Honorable Court dots not defer to the appellate

court’s waiver holding (See Issue II), it should not consider

whether the search was incident to the arrest because “the

record fails to support the theory now advanced.” Jones v.

United States, 357 U.S. 493, 500 (1958) (Court declined to

consider contention that search was incident to arrest where

purpose of entry to home was to search for evidence seized and

not to arrest). As Officer Mietzner testified, he examined the

contents of the shoulder bag, which was under his control, out

uf curiosity and because “everything [had] to be inventoried”

(J.A. 15). Moreover, immediately before searching the con-

tents of the bag, he patted the outside of the bag and did not

believe it to contain a gun or drugs (J.A. 12, 14-15). Since the

record reveals the search was conducted as part of an invento-

ry, the search-incident-to-arrest theory should not be reached.

Assuming, arguendo, that the question is properly before

this Court, the search, in any event, was unreasonable and

beyond the scope of the search-incident-to-arrest exception to

the warrant requirement.

A. The Search Was Unreasonable And Beyond The Scope Of

The Search-Incident-'o-Arrest Exception Because It Was

Remote In Time And Place From The Arrest And Was

Conducted In The Absence Of Any Exigency Or Probable

Cause.

As a general rule “a search of private property must be both

reasonable and pursuant to a properly issued search warrant”

to comply with the Fourth Amendment. Arkansas v. Sanders,

442 U.S. 753, 758 (1979). Thus a search may be invalidated

solely because a warrant was not obtained or because it was

unreasonable in light of all the surrounding circumstances. See

Cady v. Dombrowski, 413 U.S. 433, 442 (1973).

1. A warrant was required.

The exceptions to the warrant requirement are few and have

been “jealously and carefully drawn” [Jones v. United States,

357 U.S. 493, 499 (1958)] to reach “that which is necessary to

accommodate the identified needs of society.” Sanders, 442

U.S. at 760. Moreover, because each exception “invariably

impinges to some extent on the protective purpose of the

Fourth Amendment,” the burden is on the party seeking the

exemption to show the need for it. Sanders, 442 U.S. at 759-60.

See United States v. Jeffers, 342 U.S. 48, 51(1951), and Mincey

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

A lawful arrest creates a situation which permits a warrant-

less, contemporaneous search of the person and the area within

his immediate control. Such searches are considered valid be-

cause of the need to remove weapons, which might be used for

resisting arrest or effecting an escape during transport to the

station, and the need to prevent the concealment or destruc-

tion of evidence. Chimel v. California, 395 U.S. 752, 763

(1969); New York v. Belton, 453 U.S. 454, 457 (1981).

This Court has recognized, however, that the scope of the

search must be strictly tied to and justified by the circum-

stances which rendered its initiation permissible. Thus in

Chimel, the Court narrowed the spatial scope of the search

from that which had been recognized in prior decisions to the

area from within which an arrestee might gain possession of a

weapon or destructible evidence. No comparable justification

was found for searching beyond this area. 395 U.S. at 763. See

Terry v. Ohio, 392 U.S. 1 (1968); Belton, 453 U.S. at 457;

Mincey, 437 U.S. at 393.

Similarly, this Court has placed temporal limitations on the

scope of this exception by holding that the search must be

contemporaneous with the arrest. No comparable justification

for allowing a search remote in time or place from the arrest

has been found to exist. See, e.g., Preston v. United States, 376

U.S. 364 (1964); Dyke v. Taylor Implement Mfg. Co., 391 U.S.

216 (1968).“ With respect to searches of automobiles, for ex-

ample, this Court has held that the passenger compartment

may be searched as a “contemporaneous incident” of an arrest

on a public highway (Belton, 453 U.S. at 460); however, an

automobile may not be searched as an incident to the arrest

once the car has been taken to another place and the accused is

in custody. (Preston, 376 U.S. at 367; Dyke v. Taylor Imple-

ment Mfg. Co., 391 U.S. at 220-21). As noted by Justice White

in Chambers v. Maroney, 399 U.S. 42, 47 (1970), “the reasons

that have been thought sufficient to justify warrantless sear-

ches carried out in connection with an arrest no longer obtain

when the accused is safely in custody at the station house.“

This Court’s opinions in United States v. Chadwick, 433

U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753 (1979),

reaffirmed these temporal limitations and also recognized that

an arrested person retains a high privacy interest in the con-

tents of his repositories of personal effects. In Chadwick, the

See also Agnello v. United States, 269 U.S. 20 (1925); Stoner v.

California, 376 U.S. 483, 486 (1964); Shipley v. California, 395 U.S.

818 (1969).

In Chambers the Court upheld a search, which was remote in

time and place from the arrest and based on probable cause, under

the “automobile exception”. In contrast, a shoulder bag in custody in

the station is involved here and there was no probable cause to search

it.

Court held that, in the absence of any exigency, a warrant was

required to search the contents of luggage, which had been

seized at the time of arrest, even though there was probable

cause to search it for contraband. The Court emphasized the

high expectation of privacy in the contents of personal luggage

and rejected the Government’s contention that that expecta-

tion of privacy was lost by virtue of the arrest. 433 U.S. at 16

n.10. The Court thus concluded that “warantless searches of

luggage or other property seized at the time of arrest cannot be

justified as incident to that arrest either if the ‘search is remote

in time or place from the arrest,’ . . . or no exigency exists.”

433 U.S. at 15, quoting Preston, 376 U.S. at 367 (citation

omitted).

Similarly, in Sanders, the Court held that, in the absence of

any exigency, the police could not conduct a warrantless search

of a suitcase following its removal from a taxi. The Court noted

that, where the police, “without endangering themselves or

risking loss of the evidence, lawfully have detained one sus-

pected of criminal activity and secured his suitcase, they

should delay the search thereof until after judicial approval has

been obtained.” 442 U.S. at 766.“ In a concurring opinion,

Chief Justice Burger, the author of Chadwick, summarized his

earlier opinion as follows:

Thel essence of our holding in Chadwick is that there is a

legitimate expectation of privacy in the contents of a trunk

or suitcase accompanying or being carried by a person;

that expectation of privacy is not diminished simply be-

cause the owner’s arrest occurs in a public place. Whether

arrested in a hotel lobby, an airport, a rai terminal,

or on a public street, as here, the owner has the right to

This Court has since rejected some of the reasoning in Arkansas

v. Sanders, but not its holding, which still applies to luggage in an

automobile where there is probable cause to search the luggage but

not the automobile, i.e., where the relationship between the auto-

mobile and luggage is purely coincidental. United States v. Ross,

—— U.S. —, 72 L.Ed.2d 572, 593 (1982).

expect that the contents of his lu e will not, without

his — be exposed on demand of the police. 442 U.S.

at A

In the instant case the search of Lafayette’s shoulder bag

was subject to the warrant requirement since it was a reposito-

ry for personal private effects. Sanders, 442 U.S. at 762 n.9.

Moreover, Lafayette had a legitimate expectation of privacy in

the contents of his bag, which was not reduced simply because

he was carrying it when he was arrested in a public place.

Chadwick, 433 U.S. at 16 n.10; Sanders,” 442 U.S. at 766-67

(Burger, C.J., concurring).

Although a warrantless search of the bag might have been

permissible at the time of the arrest under the Fourth

Amendment,” the search here was not conducted until the bag

was taken from Lafayette at the station and was “securely in

the control of the police.” Sanders, 442 U.S. at 767. As the

state concedes, the search took place after it was determined

that Lafayette would be taken to a jail cell and after he was

ordered to remove his clothing (J.A. 14, 16; Brief for Petitioner

at 3-4, 17). The search thus was conducted as part of a routine

caretaking procedure since the police were going to store and

safeguard the bag while Lafayette was in a cell. (See Issue I)

Since the search was remote in time and place from the

arrest and no exigency existed, the search failed to comply

2” Assuming the bag was not inaccessible to Lafayette, a con-

temporaneous search would appear to have been proper under the

Fourth Amendment. See, e.g., Draper v. United States, 358 U.S. 307

(1959). However, a contemporaneous search may not have been

permissible under Illinois law because there was no evidence for

which to search and the officer had no fear for his safety. See People v.

Helm, 89 Ill. 2d 34, 431 N.E.2d 1033 (1981); Ill. Rev. Stat. ch. 38,

§ 108-1 (1979). In any event, it is without question that the delayed

search violated Illinois law. People v. Helm. See argument II of this

brief. ,

with the warrant requirement and was unreasonable. Chad-

wick, 433 U.S. at 15.”

The state contends this case is different from Chadwick and

Sanders because, according to the state, Lafayette “continued

wearing the purse until the time of the search when he placed it

on the counter in front of the officer who performed the search”

(Brief for Petitioner at 19). This argument should be rejected

because it is based upon controverted testimony which cannot

be asserted as fact.

Although Officer Mietzner testified that Lafayette placed

his shoulder bag on the counter, Lafayette testified that one

officer grabbed him and another took the bag from him and

threw it on the counter (J.A. 10). No finding of fact was made

regarding this conflicting testimony by the trial court. How-

ever, on appeal, the court found that Lafayette “had been

secured” and that “the shoulder bag was in the officer’s ex-

clusive possession” (J.A. 28). These findings are supported by

Lafayette’s testimony, which, under Illinois iaw, the court

below viewed favorably.” People v. Holloway, 86 JI. 2d 78, 426

N.E.2d 871 (1981).

Although Lafayette maintains that the search was both (I) re-

mote in time and place from the arrest and (2) not justified by any

exigency, the rule from Chadwick is that either one of these facts

standing alone would trigger the warrant requirement. 433 U.S. at

15.

2 Where a trial judge makes no express findings, a reviewing court

in Illinois is bound to view the evidence based on the testimony most

favorable to the prevailing party unless it is clearly unreasonable.

People v. Haskell, 41 Ill. 2d 25, 241 N.E.2d 430 (1968). Illinois law

also provides that the order allowing or denying a motion to suppress

evidence illegally seized “shull state the findings of facts and con-

clusions of law upon which the order or judgment is based.” II]. Rev.

Stat. ch. 38, § 114-12 (e) (1979). The state did not make a request for

findings following the court’s order which summarily allowed the

motion. Accordingly, the state cannot complain now of the absence of

findings or assume a finding in its favor.

Moreover, it would be unjust to reject these findings by the

appellate court, particulary since the state’s belated search-

incident claim prevented the presentation of relevant evidence

at the suppression hearing. (See Issue II) The true facts may

actually be that Lafayette was fifty feet away from Mietzner,

surrounded by police officers, and in the act of removing his

pants when the contents of the bag were searched. Since the

state had the burden to prove the exception upon which it

relies, it should have developed facts to support that theory.

United States v. Jeffers, 342 U.S. 48, 51 (1951).

Accordingly, as in Sanders, the state here “has failed to

carry its burden of demonstrating the need for [a] warrantless

{search].” 442 U.S. at 763. The appellate court correctly found

that the bag was in the officer’s exclusive control and a warrant

was required.“

2. The search was unreasonable.

Although this search should be invalidated solely because a

warrant was not obtained, it is evident that the search was also

unreasonable in light of all the surrounding circumstances.

Sanders, 442 U.S. at 758; Cady v. Dombrowski, 413 U.S. at

442. Significantly, there was no probable cause to search and

Based upon its erroneous assertion of fact, the state argues that

Belton applies to this case (Brief for Petitioner at 19). Actually the

holding of Belton permits, as a “contemporaneous incident” of arrest,

only a search of the passenger compartment of an automobile. 453

U.S. at 460. As the Court explicitly stated, this holding did] no

more than determine the meaning of Chimel’s principles in this

particular and problematic context.” 453 U.S. at 460 n.3. There is

little or no danger that an arrestee will gain access to a container

which has been removed from him inside a police station.

It should be noted that in Sanders the risk that the respondent or

his companion would gain access to the suitcase was actually greater

than the risk here that Lafayette would gain access to his bag. In

Sanders the search was conducted on the street; here it was at the

station house.

the search was not conducted to serve any of the purposes of a

search incident to arrest. Officer Mietzner had no reason to

search the bag other than to inventory it. Furthermore, the

bag was not searched to prevent Lafayette from obtaining a

weapon or destroying evidence (J.A. 14-15). See Chimel v.

California, 395 U.S. at 763.

These circumstances compel a finding of unreasonableness.

As noted in Chambers v. Maroney, 399 U.S. 42, 51 (1970):

In — the Fourth Amendment’s prohibition against

unreasonable searches and seizures, the Court has in-

sisted upon probable cause as a minimum requirement for

a reasonable search permitted by the Constitution.

Similarly, the fact that no purpose for conducting a search

incident to arrest was present merits weight. See People v.

Helm, 89 Ill. 2d 34, 431 N.E.2d 1033 (1981); People v. Bean,

107 III. App. 3d 662, 437 N.E.2d 1295 (1982), petition for cert.

filed, (No. 82-948).

It is recognized that in United States v. Robinson, 414 U.S.

218 (1973), the Court rejected a rule which would require

litigation in each case of the issue of whether there was present

one of the purposes supporting the authority for a search of the

person incident to arrest. Similarly, it is recognized that in

Robinson the Court permitted the search without probable

cause.

The Court’s rationale in making these findings was that a

police officer’s determination to search was “necessarily a

quick ad hoc judgment.” 414 U.S. at 235. In this case, however,

there was no search made at the time of the arrest, but rather a

routine station-house inventory procedure was followed.

Given the factual context of this case, there is no reason to

dispense with the probable cause requirement. Nor should the

rationale which underlies a search incident to arrest be

ignored. See Preston v. United States, 376 U.S. 364; Dyke v.

Taylor Implement Mfg. Co., 391 U.S. at 220.

As noted by Justice Frankfurter, the right to search incident

to arrest must be analyzed within its factual context:

“(T]he basis of any right to search as an incident to arrest

{must be] put in ‘ne ged focus. Photographs can be so taken

as to make a midget look like a giant, and vice versa. The

same kind of distortion results if a legal doctrine embed-

ded in a larger matrix of principle is taken out of the matrix

and elevated to an independent position. In plain English,

the right to search incident to arrest is merely one of those

very narrow exceptions to the ‘guaranties and immunities

which we had inherited from our English ancestors, and

which had from time immemorial been subject to certain

well-recognized exceptions arising from the necessities of

the case.’” United States v. Rabinowitz, 339 U.S. 56,

71-72 (1949) (dissenting opinion) (citations omitted).

Accordingly, this Court should find that the warrantless

search was unreasonable and beyond the scope of one incident

to arrest because it was remote in time and place from the

arrest and no exigency or probable cause existed for the

search. A finding by this Court that the search was unreason-

able would be consistent with both the facts of this case and the

decisions of this Court. Indeed since an automobile cannot be

searched incident to arrest without probable cause where it

has been driven from the place of arrest to the station house

(Dyke; Preston), it would be anomalous to find that a shoulder

bag, in which there is a substantially greater expectation of

privacy, can be searched inside the station. The search thus

violated the warrant requirement as well as the reasonable-

ness standard of the Fourth Amendment.”

Several courts have rejected the argument that the police can

conduct a delayed search, as an incident to the arrest, of repositories

of personal effects which were being carried or were within the

arrestee’s reach at the time of arrest. See, e.g., United States v.

Schleis, 582 F.2d 1166 (8th Cir. 1978); United States v. Rengifo-

Castro, 620 F.2d 230 (10th Cir. 1980); United States v. Gooch, 603

F. 2d 122 (10th Cir. 1979); United States v. Monclavo-Cruz, 662 F. 2d

1285 (9th Cir. 1981); United States v. Calandrella, 605 F. 2d 236, 249

B. Contrary To The State’s Contention, This Case Is Not

Controlled By Robinson And Edwards.

The State argues that this case is distinct from Chadwick

and Sanders and controlled by United States v. Robinson, 414

U.S. 218 (1973), and United States v. Edwards, 415 U.S. 800

(1974). According to the state, a lawful arrest authorizes a

subsequent station-house search of the person and all con-

tainers which were within his possession at the time of arrest

(Brief for Petitioner at 9-10, 14-15, 21).

Without explicitly stating so, the state asks this Court to

reject the reasoning in Chadwick and Sanders to the effect that

one’s expectation of privacy in the contents of repositories of

personal effects accompanying or being carried at the time of

his arrest is not diminished by virtue of the arrest and is

independent of the expectation of privacy in one’s body and

clothing. Chadwick, 433 U.S. at 15 & 16 n. 10; Sanders, 442

U.S. at 766-67 (Burger, C. J., concurring). However, there is

no need to reject the reasoning in Chadwick and Sanders. Nor

is this case controlled by Robinson and Edwards.

Robinson recognized that the search-incident-to-arrest ex-

ception to the warrant requirement had historically been

formulated into two distinct propositions: (1) the search of a

person; and (2) the search of the area within the control of the

(6th Cir.), cert. denied, sub nom., Kaye v. United States, 444 U.S.

991 (1979); United States v. Lace, 502 F. Supp. 1021 (D. Vt. 1980),

aff'd, 669 F.2d 46 (2d Cir. 1982); United States v. Musick, 534 F.

Supp. 954, 962-63 (N.D. Cal. 1982); Matter of B.K.C., 413 A.2d 894

(D.C. Ct. App. 1980); United States v. Farrar, 470 F. Supp. 128

(S.D. Miss. 1979); People v. Helm, 89 Ill. 2d 34, 431 N.E.2d 1033

(1981); State v. Dudley, 561 S.W.2d 403 (Mo. Ct. App. 1978); State v.

Stevens, 26 Wis. 2d 451, 132 N.W.2d 502 (1965); State v. Pender, 66

Ohio Misc. 23, 419 N.E.2d 1141 (1980); Bradford v. State. Ind.

App. ——, 401 N.E.2d 77 (1980). See also United States v. Corbin,

494 F. Supp. 244 (M.D. N.C. 1980); United States v. Jones, 317 F.

Supp. 856 (E.D. Tenn. 1970).

arrestee. 414 U.S. at 224. Robinson and Edwards, unlike this

case, both involved situations falling within this first proposi-

tion. In Robinson, a contemporaneous full search of the person

was allowed to disarm the person and discover evidence.” In

Edwards, the seizure of clothing worn by an arrestee as evi-

dence of a crime was upheld by the Court. The very distinction

between the person and repositories of personal effects in his

control is what the Court recognized in Chadwick, where both

Edwards and Robinson are distinguished:

“Unlike searches of the person, United States v. Robin-

son, 414 U.S. 218 (1973); United States v. Edwards, 415

U.S. 800 (1974), searches of possessions within an arres-

tee’s immediate control cannot be justified by any reduced

> a of privacy caused by the arrest.” 433 U.S. at

n.10.

The state thus reads Robinson and Edwards too broadly and

fails to recognize the distinction that exists between a search of

the person and a search of a repository of personal effects, such

as a shoulder bag. ,

The state also argues that Edwards supports a delayed

search of repositories of personal effects incident to arrest.

Lafayette recognizes that Edwards suggests that property

which the accused decides to carry with him from the place of

the arrest to the place of detention may be seized and searched.

415 U.S. at 803, quoting Abel v. United States, 362 U.S. 217

(1960). In Edwards the question, however, was actually

whether the warrantless seizure” of clothing as evidence of a

Although a crumpled cigarette package was removed from the

arrestee’s pocket and searched, the Court did not engage in a “con-

tainer” analysis. More importantly, however, the package was sear-

ched immediately. Robinson provides no support for a delayed

search of a container.

Although Edwards uses the word “search” in parts of its opinion,

the discussion mostly refers to a “seizure.” The questions, whether a

visual inspection of outer clothing constitutes a search and whether a

person has a legitimate expectation of privacy in the condition and

crime could be justified where the arrestee had been in custody

for ten hours. In upholding the seizure, the Court noted that no

suitable clothing had been available at the time Edwards was

placed in jail. The Court further found that it was reasonable to

seize and examine the clothing for paint chips, given the ex-

istence of probable cause linking the clothes to a crime and

given the danger of destruction of the evidentiary value of the

clothing. 415 U.S. at 805-06. The Court then explicitly limited

its holding to the facts before it, noting that it was not holding

that the warrant clause was never applicable to a post-arrest

seizure of the effects of the arrestee. 415 U.S. at 808.

Edwards, unlike this case, thus involves the seizure of cloth-

ing of an arrestee where there was probable cause that it

constituted evidence of a crime and where the seizure was

necessary to prevent loss of the evidence.

Abel v. United States is also distinguishable from this case.

In Abel, the petitioner, who was suspected of being a Russian

spy, was arrested pursuant to a deportation arrest warrant. A

fifteen-to-twenty-minute search was then conducted of his per-

son and of all his belongings in his hotel room and the adjoining

bathroom. Abel then chose the belongings which he wished to

take with him, and immigration officers assisted him in packing

his belongings. Subsequently, all of Abel’s belongings were

searched more thoroughly at Immigration headquarters. A

birth certificate and other evidence of Abel's illegal atus

were discovered and seized at that time. 362 U.S. at 221 In

upholding the validity of this later search, the Court noted that

it had been conducted to secure evidence of his illegal status.

Furthermore, the Court emphasized that the search had only

involved a more thorough search of items Abel had decided to

take with him. 362 U.S. at 238-39.

appearance of his outer clothing which is exposed to public view,

were not raised. The Court has since noted that an arrestee has little

or no expectation of privacy in his person or clothing being worn. See

Bell v. Wolfish, 441 U.S. 520 (1979).

Abel is thus different from the instant case because the

search there started in the hotel room and was merely con-

tinued at the place of detention. Moreover, the search involved

the belongings Abel chose to bring with him, and there was

probable cause to search for evidence of his illegal status. See

State v. Brown, 291 Or. 642, 634 P.2d 212, 218 n.8 (1981).

To the extent, however, that Abel suggests a warrantless

search of luggage can be conducted at the station in the absence

of any exigency, the decision is simply inconsistent with Chad-

wick and Sanders. Furthermore, some of the precedents and

principles underlying the decision in Abel were subsequently

overruled. Specifically, the Abel Court relied upon Harris v.

United States, 331 U.S. 145 (1946), in finding that the fifteen-

to-twenty-minute search at the hotel was proper. 362 U.S. at

238-39. Harris and its progeny were overruled, however, in

Chimel v. California, 395 U.S. 752, 768 (1969). Accordingly,

Abel’s continuing validity is questionable. See United States v.

Hernandez-Rojas, 470 F. Supp. 1212, 1221-22 (E.D. N.Y.),

aff'd, 615 F.2d 135 (2d Cir. 1979).

Consequently, Robinson, Edwards and Abel should not be

found to control this case.

C. Lafayette’s Expectation Of Privacy In The Contents Of

His Bag Was Not Reduced By Virtue Of The Arrest Under

The Theory That The Bag Was Immediately Associated

With His Person.

In its amicus brief, the Government argues that containers

which can be said to be immediately associated with the person

can be searched incident to the arrest even if, at the time of the

search, the container is within the exclusive possession of the

police. The Government reads this Court’s decisions as requir-

ing a case-by-case determination of whether a particular

repository within the arrestee’s control at the time of arrest is

luggage or whether it is some other type of container that can

be said to be immediately associated with the person (Brief for

Government at 14-19). This position is essentially rejected by

the state, which recognizes that a rule which would distinguish

between various types of repositories is inconsistent with the

Fourth Amendment (Brief for Petitioner at 20-21).

The Government bases its claim on the following passage

from Chadwick:

“Once law — officers have reduced luggage or

c personal property not immediately associated with

the person of the arrestee to their — control, and

there is no longer any danger that the arrestee might gain

access to the frond — 4 to seize a weapon or destroy evi-

dence, a that * ed is no longer an incident of

the arrest.” 433 U.S. at 1

According to the Government, the implication of the qualifying

phrase “not immediately associated with the person of the

arrestee” is that personal property that is so associated may be

subject to a search at the station house. The Government

argues that Lafayette’s shoulder bag was like a purse or wal-

let, which ordinarily is carried on the person or kept within

ready access at all times, and, therefore, according to the

Government, was immediately associated with his person

(Brief by Government at 15-17).

Chadwick, however, involved the question whether a war-

rant was required to open a footlocker that was lawfully in

police possession. 433 U.S. at 7 n.3. The Court answered this

question in part (3) of the opinion where it concluded that it was

unreasonable to conduct a warrantless search. 433 U.S. at 11.

The qualifying phrase in question is contained in part (4) of the

opinion and is not stated as part of the holding of the case.

Therefore, it would appear that the Court only meant the

phrase to encompass searches of clothing being worn. See 433

U.S. at 16 n.10. There is no reason to read the qualifying

phrase more broadly so as to include repositories such as

shoulder bags, particularly since there was no need for the

Court in Chadwick to discuss such matters.”

The situation is analogous to a passage in Peters v. New York, 392

U.S. 40 (1968), which drew attention in United States v. Robinson,

414 U.S. 218, 229 (1973):

We do not believe that the Court in Peters intended in one

unexplained and unelaborated sentence to impose a novel and

Although some courts do not view the qualifying phrase

from Chadwick to exempt containers, other courts find that

the qualifying phrase does exempt certain types of containers

and litigate on a case-by-case basis whether a particular con-

tainer is luggage or simply property immediately associated

with the person.” Application of this test, which is based upon

one unelaborated phrase taken out of context, predictably, has

resulted in conflicting results over whether containers such as

a purse, shoulder bag, backpack, briefcase or suitcase are

immediately associated with the person.” Some courts, which

feel compelled to apply Chadwick’s supposed qualifying-

phrase test, have found it to be so unworkable that they have

far-reaching limitation on the authority to search the person of

an arrestee incident to his lawful arrest.

See Snyder v. State, 629S.W.2d 930 (Crim. App. Tex. 1982) (Clinton,

J., dissenting).

Compare People v. Helm, 89 Ill. 2d 34, 431 N.E.2d 1033 (1981);

United States v. Monclavo-Cruz, 662 F. 2d 1285 (9th Cir. 1981), with

Dawson v. State, 40 Md. App. 640, 395 A.2d 160 (1978); Hinkel v.

Anchorage, 618 P.2d 1069 (Alas. 1980).

Cases finding a container to be immediately associated with the

person include People v. Harris, 105 Cal. App. 3d 204, 164 Cal. Rptr.

296 (1980) (purse); Dawson v. State, 40 Md. App. 640, 395 A.2d 160

(1978) (purse ,; United States v. Graham, 638 F.2d 1111 (7th Cir.),

cert. denied, 450 U.S. 1034 (1981) (shoulder purse); Hinkel v.

Anchorage, 618 P.2d 1969 (Alas. 1980) (purse); Stewart v. State, 611

S.W.2d 434 (Crim. App. Tex. 1981) (purse); Farb v. State, 634

S.W.2d 14 (Ct. App. Tex. 1982) (backpack); Jones v. State, 640

S. W. 2d 918 (Crim. App. Tex. 1982) (briefcase).

Those finding various containers not to be immediately associated

with the person include United States v. Corbin, 494 F. Supp. 244

(M.D. N.C. 1980) (purse); United States v. Farrar, 470 F. Supp. 128

(S.D. Miss. 1979) (purse); Ulesky v. State, 379 So. 2d 121 (Dist. Ct.

App. Fla. 1979) (purse); United States v. Schleis, 582 F.2d 1166 (8th

Cir. 1978) (briefcase); Miller v. Superior Court, 127 Cal. App. 3d 494,

179 Cal. Rptr. 783 (1981) (brown paper bag and tote bag).

fashioned holdings based upon state constitutional grounds.

See, e.g., State v. Caraher, 293 Or. 741, 749-50, 653 P.2d 942

(1982).

Lafayette’s position is that no qualifying-phrase test was

established by Chadwick. Yet, even if the Court did intend

such arule, it is unworkable. As noted in United States v. Ross,

— U.S. at., 72 L. Ed. 2d 572, 592 (1982), a constitutional

distinction between “worthy” and “unworthy” containers is

foreclosed by the central purpose of the Fourth Amendment,

which protects privacy interests. Accordingly, no rule should

be adopted which would require courts to determine on a

case-by-case basis whether items such as boxes, paper bags,

purses, carry-on luggage and even the hobo’s knitted scarf are

luggage-like repositories or simply effects which are immedi-

ately associated with the person.”

A more workable rule, consistent with the protection of

privacy interests, would allow containers which are accessible

to the arrestee to be searched contemporaneously with the

arrest; however, once the accused is secured at the station

house and the container has been removed from his reach, no

warrantless search should take place in the absence of exigent

circumstances. This rule should apply to containers which are

not part of the clothing of the citizen and, therefore, can be

reduced to the exclusive control of the police without removal

Factors relied upon in applying this test include whether the

container is normally carried by the person or remains within his

control and whether it serves the same function as pockets. See, e. g.,

United States v. Berry, 560 F. 2d 861 (7th Cir. 1977), vacated on other

grounds, 571 F.2d 2 (7th Cir.), cert. denied, 439 U.S. 840 (1978). It

should not be overlooked that the state, by not raising this issue at

the suppression hearing, prevented the development of evidence

pertaining to these factors. There is not even a description of the

shoulder bag in the record.

of the arrestee’s clothing. See State v. Caraher, 293 Or. at

770-71 (Lent, C. J., dissenting).™

In sum, Lafayette had a high expectation of privacy in his

shoulder bag independent of that in his body and clothing.

Moreover, the state did not meet its burden to show the need

for the warrantless search. The delayed search was thus

beyond the scope of one incident to arrest. Furthermore, it was

unreasonable, particularly because there was no probable

cause to search and the search was not based on any exigency.

CONCLUSION

For the foregoing reasons the decision of the Appellate

Court of Illinois should be affirmed.

Respectfully submitted,

ROBERT AGOSTINELLI*

Deputy Defender

PETER A. CARUSONA

FRANK W. RALPH

Assistant Defenders

Office of the State Appellate

Defender

628 Columbus Street - Suite 308

Ottawa, Illinois 61350-2950

(815) 434-5531

COUNSEL FOR PETITIONER

*Counsel of Record

® A wallet or other container, such as a sealed letter or package,

within an arrestee’s clothing logically would fall within this rule and

would not be subject to a station-house search. However, this Court

need not decide in this case whether such items are like clothing and,

therefore, part of the person and subject to be searched pursuant to

Robinson or Edwards. See People v. Bean. 107 Ill. App. 3d 662, 437

N.E. 2d 1295 (1982), petition for cert. filed, (No. 82-948).

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.