Petition for Writ of Certiorari — Florida v. Jamison

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6 4 és 7 36 (1) Office - Supreme Court, U.S.

| FILED

NOV 2 1984

CASE NO. auger |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

STATE OF FLORIDA,

Petitioner,

vs.

MORGAN JAMISON, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA,

FOURTH DISTRICT

JIM SMITH

Attorney General

JOY B. SHEARER

Assistant Attorney General

111 Georgia Avenue, Room 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel of Record for Petitioner

QUESTION PRESENTED

MUST AN OFFICER CONDUCT-

ING THE FRISK FOR A

FIREARM PERMITTED BY

TERRY v. OHIO, 392 U.S. 1

; THE FRISK

TO A PAT-DOWN OF THE

SUSPECT'S OUTER CLOTHING

EVEN THOUGH CONDUCTING

A PAT-DOWN WOULD RISK

THE OFFICER'S SAFETY,

OR MAY THE REASONABLE-

NESS OF A FRISK BE

DETERMINED FROM THE

RELEVANT CIRCUMSTANCES?

COs tee Nara A eS eth ae

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

GROUND UPON WHICH JURIS-

DICTION IS INVOKED

CONSTITUTIONAL AND

STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE WRIT

CONCLUSION

PAGE

iii

TABLE OF AUTHORITIES

PAGE

Adams v. Williams,

407 U.S. 143 (1972) 18

Jamison v. State,

So.2d ;

4DCA No. 83-18

(Op. filed 9/19/84) 1

Massachusetts v. Sheppard,

U.S. ;

82 L.Ed.2d 737 (1984) 19

Robbins v. California,

453 U.S. 420 (1981) 17

Terry v. Ohio, 392 U.S. 1

(1968) LA £85 kes

15,17,18,20

United States v. Leon,

U.S. ,

82 L.Ed.2d 677 (1984) 19

United States v. Ross,

456 U.S. 798 (1982) 17

Williams v. Florida,

399 U.S. 78 (1970) 2

PAGE

Article V, §3(b),

Florida Constitution 2

Article V, §4(b)(i),

Florida Constitution 2

Article I, Section 12,

Florida Constitution 4,11

Amendment IV,

United States Constitution 3

28 U.S.C., §1257(3) 3

Section 901.151,

Florida Statutes Je bagae

Secticn 901.151(5),

Florida Statutes 10,12

Section 901.151,

Florida Stats. Anno.,

Historical Note 11,12

OPINION BELOW

The opinion of the District

Court of Appeal of the State of

Florida, Fourth District, was filed

on September 19, 1984. It is not

yet reported, but it has been

reproduced in its entirety in the

appendix to this petition.

Jamison v. State, So.2d se,

4DCA No. 83-18 (Op. filed 9/19/84).

GROUND UPON WHICH

JURISDICTION IS INVOKED

The opinion of the District

Court of Appeal of the State of

Florida, Fourth District, was filed

on September 19, 1984. It reversed

the Respondent's convicticn for

possession of methaqualone and the

three-year sentence imposed for the

conviction, on the ground that the

trial court should have granted the

Respondent's Motion to Suppress the

evidence obtained from a stop and

frisk. The District Court of Appeal

was the court of last resort in this

case, for the Florida Supreme

Court's jurisdiction is limited and

the instant case did not fall within

one of the categories reviewable in

the state supreme court. See,

Fla. Const., Art. V, §4(b)(i) and

§3(b). Thus, the opinion of the

Fourth District Court of Appeal is

the decision of the highest court

in which decision could be had in

this case. See, Williams v. Florida,

399 U.S. 78, 80, n. 5 (1970).

This petition is timely filed

within sixty days of the entry of

the decision of the Fourth District

Court of Appeal. The certiorari

jurisdiction of this Court is

invoked pursuant to 28 U.S.C.,

§1257(3). {An order tolling and

extending the state speedy trial

period pending the disposition of

the instant petition has been

entered by the trial court.]

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Amendment IV, United States

Constitution, provides, in pertinent

part:

The right of the people

to be secure in their

persons, houses, papers,

and effects, against un-

reasonable searches and

seizures, shall not be

violated .

Article I, Section 12, Florida

Constitution provides:

SECTION 12. Searches

and seizures.--The right

of the people to be

secure in their persons,

houses, papers and effects

against unreasonable

searches and seizures,

and against the unreasonable

interception of private

communications by any means,

shall not be violated. No

warrant shall be issued

except upon probable cause,

supported by affidavit,

particularly describing

the place or places to be

searched, the person or

persons, thing or things

to be seized, the communica-

tion to be intercepted,

and the nature of evidence

to be obtained. This right

shall be construed in

conformity with the 4th

Amendment to the United

States Constitution, as

interpreted by the United

States Supreme Court.

Articles or information

obtained in violation of

this right shall not be

admissible in evidence if

such articles or information

would be inadmissible

under decisions of the

United States Supreme

Court construing the 4th

Amendment to the United

States Constitution.

Section 901.151, Florida

Statutes, provides:

901.151 Stop and Frisk

Law.--

(1) This section may be

known and cited as the

"Florida Stop and Frisk Law."

(2) Whenever any law

enforcement officer of this

state encounters any person

under circumstances Shieh

reasonably indicate that

such person has committed,

is committing, or is about

to commit a violation of

the criminal laws of this

state or the criminal

ordinances of any

municipality or county,

he may nly stig 8 detain

such person for the purpose

of ascertaining the identity

of the person temporarily

detained and the circumstances

surrounding his presence

abroad which led the

officer to believe that

he had committed, was

committing, or was about

to commit a criminal

offense.

(3) No person shall

be temporarily detained

under the provisions of

subsection (2) longer

than is reasonably

necessary to effect the

purposes of that subsection.

Such temporary detention

shall not extend beyond

the place where it was

first effected or the

immediate vicinity thereof.

(4) If at any time after

the onset of the temporary

detention authorized by

subsection (2), probable

cause for arrest of person

shall appear, the person

shall be arrested. If,

after an inquiry into the

circumstances which prompted

the temporary detention,

no probable cause for the

arrest of the person shall

appear, he shall be released.

(5) Whenever any law

enforcement officer autho-

rized to detain temporarily

any person under the pro-

visions of subsection (2)

has probable cause to

believe that any person

whom he has temporarily

detained, or is about to

detain temporarily, is

armed with a dangerous

weapon and therefore offers

a threat to the safety

of the officer or any

other person, he may

search such person so tem-

porarily detained only to

the extent necessary to

disclose, and for the

purpose of disclosing,

the presence of such

weapon. If such a search

discloses such a weapon

or any evidence of a

criminal offense it may

be seized.

(6) No evidence seized

by a law enforcement offi-

cer in any search under

this section shall be

admissible against any

person in any court of

this state or political

subdivision thereof unless

the search which disclosed

its existence was authorized

by and conducted in

compliance with the provisions

of subsection (2)(5).

STATEMENT OF THE CASE

The opinion of the court below

sets forth the material facts, as

stated by the parties in their

appellate briefs, and the opinion is

reproduced in the appendix. To

summarize, Deputy Sheriff Gregory

Younkin received a radio dispatch

that a citizen, Marion Craft, had

called in a complaint. The complaint

was that a black male wearing long

blue pants and no shirt was at the

south end of Jensen Beach with a

firearm.

Deputy Younkin arrived at the

beach within four minutes after he

received the dispatch. He observed

several black males, but as the

Respondent was the only one wearing

long blue trousers, he was the only

person who matched the description.

The deputy asked the Respondent to

lift his pant leg up, rather than

conduct a pat-down frisk, because

the presence of the other persons

concerned him since he was alone

and he wanted to keep an eye on

everyone. After the Respondent

lifted his pant leg, Deputy Younkin

observed a bulge in his sock. He

thought the bulge was caused by a

small caliber firearm, because in

the past he had encountered people

who carried weapons in their socks.

Deputy Younkin asked the Respondent

to remove the bulge, which he did,

revealing a brown paper bag. The

Respondent was then directed to

empty its contents on a nearby

table, which he did. It was then

revealed that the bag contained

the methaqualone tablets which were

the basis for the prosecution in

the trial court. Up until the time

the bag was emptied, however, Deputy

Younkin suspected the presence of

and was looking for a firearm.

The Fourth District Court of

Appeal held that the initial stop

of the Respondent was proper and the

officer was entitled to conduct a

frisk. However, the court concluded

the officer exceeded the scope of

the frisk permitted by Fla. Stat.

901.151(5), Florida's stop and

frisk law, because he did not pat

down the Respondent's outer clothing

but instead directed him to lift

his pant leg, remove the bulge in

the sock and empty the bag which

caused the bulge. This decision is

a construction of the Fourth

Amendment to the United States

Constitution because Fla. Stat.

901.151 was enacted in 1969 to

implement the guidelines for a

permissible Fourth Amendment stop

and frisk enumerated in Terry v.

Ohio, 392 U.S. 1 (1968). See,

§901.151, Fla. Stats. Anno.

Historical Note. Moreover, under

Article I, Section 12 of the Florida

Constitution, the Florida courts

must determine search and seizure

issues “in conformity with the

4th Amendment to the United States

Constitution, as interpreted by

the United States Supreme Court."

The Fourth Amendment determination

by the District Court of Appeal

gives this Court jurisdiction to

review the judgment on certiorari.

REASONS FOR GRANTING

THE WRIT

The issue presented by this

case is an important one which

raises a substantial federal question:

Must an officer conducting a frisk

for a firearm pat down the suspect's

clothing where to do so would risk

his personal safety or may the

manner of the frisk be determined

from the relevant circumstances?

Relying upon Florida's stop and

frisk law, Fla. Stat. 901.151(5),

which was taken directly from

the guidelines announced in Terry

v. Ohio, 392 U.S. 1 (1968)*, the

1§901.151, Fla. Stats. Anno.,

Historical Note:

--Legislative Reference Bureau--1969:

Senate Bill 125, Chapter 69-73,

reiterates the circumstances under

which a law enforcement officer may

state appellate court held a frisk

must not extend beyond a pat-down

of the suspect's outer clothing and

Deputy Younkin conducted an illegal

search when he directed the Respondent

to lift his pant leg, remove the

bulge in his sock, and dump the

contents of the bag that was causing

the bulge. The Petitioner maintains

that Terry v. Ohio, 392 U.S. 1 (1968)

does not require the result reached

by the court below.

While it is true that in

Terry v. Ohio, supra, the frisk that

footnote 1 continued:

reasonably. temporarily detain a

person suspected of breaking the law

or about to break the law as enunci-

ated in the case of Terry v. Ohio,

88 S.Ct. 1868, 392 U.S. % 20 L.Ed. 2d

889, and is given the short title

"Florida Stop and Frisk Law."

occurred was a pat-down of the

suspect's outer clothing, the court

did not require that a pat-down

be the exclusive means for con-

ducting a frisk for weapons. In

fact, the court left the door open

for that issue to be developed

further in future cases:

We need not develop at

length in this case,

however, the limitations

which the Fourth Amend-

ment places upon a

protective seizure and

search for weapons.

These limitations will

have to be developed in

the concrete factual

circumstances of individual

cases .. . The sole

justification of the

search in the present

situation is the pro-

tection of the police

officer and others nearby,

and it must therefore be

confined in scope to an

intrusion reasonably

designed to discover guns,

knives, clubs, or other

hidden instruments for

the assault of the police

officer.

Terry v. Ohio, supra, 392 U.S. at 29.

The State submits the instant

case provides an opportunity for

this Court to amplify the above-

cited portion of its opinion in

Terry v. Ohio, supra, for there is

no question that Deputy Younkin's

actions were grounded on a well

founded suspicion that the Respondent

was armed, and up until the point

when the Respondent dumped the

contents of the bag, which revealed

it contained illicit controlled

substances, his suspicion was not

allayed. As one of the concurring

judges, Judge Hersey, noted in the

court below:

In our case the search

was occasioned by an

individual's description

of appellant which

included the fact that he

had a gun. This was neither

an anonymous tip nor one

from a confidential

informant. It was a

complaint by a citizen

who gave her name and who

supplied details of a

crime in progress. Thus

the officer, upon recognizing

appellant from the descrip-

tion, had every reason to

be apprehensive about the

rere: of a firearn.

n addition, several

individuals were standing

around during the a

tion and the officer, aga

being concerned for his

safety (not be certain

who might have weapon)

wanted to keep an eye on

everyone. Assuredly he

could have ‘frisked’ the

brown paper bag. The

question is: was he

constitutionally mandated

only to feel the bag rather

than request that appellant

dump out the contents.

In my view, a rule that

requires the making of

such fine distinctions

in the presence of possible

imminent peril asks too

much of law enforcement

personnel.

Nevertheless, Judge Hersey

concurred in the court's decision,

being of the opinion, as was Judge

Glickstein, who also authored a

separate concurring opinion, that

the directive to empty the bag was

a search of a closed container,

contrary to Robbins v. California,

453 U.S. 420 (1981), and United

States v. Ross, 456 U.S. 798 (1982).

These two decisions are inapposite

to the instant case, for they

involve probable cause searches

urder the automobile exception to

the Fourth Amendment's requirement

of a warrant, and not a limited

frisk for weapons under Terry v.

Ohio, supra. In the instant case,

the State maintains the frisk con-

ducted by the officer was reasonable

under the circumstances which made

a pat-down impractical. The whole

purpose of Terry v. Ohio, supra,

which was reaffirmed in Adams v.

Williams, 407 U.S. 143 (1972), is

to permit an officer to make a

limited intrusion to ensure his own

safety. Deputy Younkin's directives

in this case imposed a minimal

intrusion on the Respondent's privacy

and served to protect the deputy's

safety. Accordingly, it is the

State's position Deputy Younkin did

not exceed the scope of the frisk

permitted under Terry v. Ohio, supra.

The State seeks this Court's

review in the instant case to

clarify this area of the law not

simply because it believes the Fourth

District Court of Appeal's opinion

is erroneous, but because the issue

presented here is an important one.

It is at least as worthy of con-

sideration as was the good faith

exception issue analyzed in

United States v. Leon, U.S. ,

82 L.Ed.2d 677 (1984) and

Massachusetts v. Sheppard,

_. —*U.S. ____,:- 82 L.Ed.2d 737 (1984).

Surely a stop and frisk occurs with

at least the same, and probably

more, frequency as do searches

conducted in reliance on invalid

Warrants, the subject which framed

the issue in Leon and Sheppard.

Law enforcement agencies must look

to this Court to set the parameters

of a frisk, as the question was

reserved in Terry.

Finally, Petitioner anticipates

Respondent may argue that the state

appel.ate court, by citing to

Section 901.151, Fla. Stat., did

not decide a federal question. If

this argument is made, it is with-

out merit. As the Petitioner has

already noted, the Florida stop

and frisk law was enacted in

response to Terry v. Ohio. Under

the Florida Constitution, state

courts must be bound by decisions

of this Court in resolving search

and seizure claims. Moreover, the

two concurring judges both cited

decisions of this Court as authority

for their disposition of the case.

Therefore, the instant case raises

a substantial Fourth Amendment

question which is appropriate for

certiorari review.

CONCLUSION

Wherefore, based on the fore-

going reasons and authorities, the

Petitioner respectfully requests

that this Court grant its Petition

for Writ of Certiorari to the

District Court of Appeal of the

State of Florida, Fourth District.

Respectfully submitted,

JIM SMITH

Attorney General

JOY B. SHEARER

Assistant Attorney General

111 Georgia Avenue, Room 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel of Record for Petitioner

APPENDIX

A-1

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 1984

MORGAN JAMISON, JR.,

Appellant,

CASE NO.

83-18

Vv.

STATE OF FLORIDA,

Appellee.

eS ee ee ae

Opinion filed September 19, 1984.

Appeal from the Circuit Court

for Martin County; C. Pfeiffer

Trowbridge, Judge.

Richard L. Jorandby, Public

Defender, Cathleen Brady,

Assistant Public Defender, West

Palm Beach, for appellant.

Jim Smith, Attorney General,

Tallahassee, and Joy B. Shearer,

Assistant Attorney General, West

Palm Beach, for appellee.

WALDEN, J.

Jamison was charged with

possession of methaqualone. He pled

A-2

nolo contendere reserving the right

to appeal the denial of his Motion

to Suppress. He was adjudicated

guilty and sentenced to three years

imprisonment. He appeals. We

reverse and remand.

The State accepts Jamison's

version of the facts as follows:

Deputy Sheriff Gregory

Younkin received a radio

dispatch that a Marion

Craft called in a complaint.

The complaint was that a

black male wearing long

blue pants, no shirt, and

a short afro was at the |

south end of Jensen Beach

with a firearm. Deputy

Younkin testified that he

never talked to Marion

Craft, and that he knew

nothing about her reliabil-

ity.

Deputy Younkin responded

to the beach four minutes

after the dispatch. He

observed the appellant, a

black male, inside the

pavilion area. The appellant

A-3

had no shirt and he was

wearing long blue pants.

There were a number of

black males in the area.

Initially, Deputy Younkin

asked all the people inside

the pavilion if anyone had

a firearm. He then asked

the appellant to life his

pants leg up. Deputy

Younkin testified that if

the appellant had refused

to lift his pants leg up,

he would have frisked hin.

After appellant lifted his

pants leg up, Deputy

Younkin noticed a bulge in

‘appellant's left sock.

He had not observed this

bulge before. The appellant

was asked to remove a

brown paper bag which he was

ordered to dump upon a

table by Deputy Younkin.

Deputy Younkin testified

that he observed about 50

white pills.

On cross-examination,

Deputy Younkin acknowledged

that he did not see anything

about the appellant that

would lead him to believe

that the appellant had a

weapon prior to asking him

to lift up his pants leg.

The State adds:

A-4

None of the persons at

the Jensen Beach pavilion

matched the description

given in the dispatch except

the appellant, as he was

the only one wearing long

trousers. Deputy Younkin

testified he thought the

bulge in the appellant's

sock was caused by a small

caliber firearm because in

the past he has encountered

people who have carried

weapons in their socks.

Deputy Younkin directed

the ie pg: to raise his

pants leg rather than do a

pat-down because the

presence of the other per-

sons in the area concerned

him and he wanted to keep

an eye on everyone.

In our opinion Jamison was

properly subjected to a stop and

frisk pursuant to Section 901.151,

Florida Statutes (1981). The facts

were insufficient to constitute

probable cause for an arrest at

the time he was stopped.

However, we are concerned with

A-5

the provisions of Section 901.151(5)

(1981) as applied to this case.

It provides:

(5) Whenever any law enforce-

ment officer authorized to

detain temporarily any

person under the provisions

of subsection (2) of this

section has probable cause

to believe that any person

whom he has temporarily

detained, or is about to

detain temporarily, is armed

with a dangerous weapon and

therefore offers a threat

to the safety of the officer

or any other person, he may

search such person so

temporarily detained only to

the. extent necessary to

disclose, and for the purpose

of disclosing, the presence

of such weapon. if such a

search discloses such a

weapon or any evidence of

a criminal offense it may be

seized.

Here the officer took these

particular actions which constituted

an illegal search: (1) He directed

Jamison to lift up his pants leg;

A-6

(2) He directed Jamison to take out

what was in his sock when he observed

a bulge in the sock; and (3) He di-

rected Jamison to dump the contents

of the brown paper bag that Jamison

had removed from his sock. We hold

that these actions exceeded the

limitations found in Section 901.151,

Florida Statutes (1981). It was not

necessary for the officer to go to

the extent he did in order to

determine ix Jamison bad a weapon.

The law is clear that a

protective frisk or "pat-down" must

be limited to that which is necessary

for the discovery of weapons. It

may not extend beyond a pat-down of

the suspect's outer clothing unless

the pat-down or other circumstances

lead the officer to believe that the

A-7

suspect has a weapon. Meeks v.

State, 356 So.2d 45 (Fla. 2d DCA

1978). See also Baldwin v. State,

418 So.2d 1219 (Fla. 2d DCA 1982);

Fraley v. State, 374 So.2d 1122

(Fla. 4th DCA 1979).

Here the officer did not pat-

down Jamison. He testified that he

did not conduct a pat-down because he

was concerned for his safety and

wanted to keep an eye on others in

the area. Accepting this excuse

in toto for his failure to pat-down

Jamison's outer clothing, we etill

feel that the officer could have

satisfactorily protected his safety

and still honored the defendant's

rights by simply having Jamison

hand the paper bag to the officer

or place it on the ground and walk

A-8

a distance away, whereupon the

officer could have patted-down or

felt the bag without opening it.

Had he done so he would have felt

pellets or pills and no weapon.

Thus, there would have been absolute-

ly no justification for proceeding

or searching further into the contents

of the bag.

We primarily base our reversal

upon J.R.H. v. State, 428 So.2d 786

(Fla. 2d DCA 1983) which involved

the search of a satchel under

circumstances similar to those at

hand. There, the Court held:

seme eelaeray

sanataies Uae or could

have conducted a pat-down

search of the bag. He

was not entitled to

inquire further than that

A-9

into the nature of its

contents or to conduct

a full-scale search of

the bag.

428 So.2d at 787-788.

Reversed and Remanded.

HERSEY and GLICKSTEIN, JJ.,

concur specially with opinions.

HERSEY, J., concurring specially.

In J.R.H. v. State, 428 So.2d

786 (Fla. 2d DCA 1983) relied upon

by the majority, (1) the search

resulted from an officer's

recollection that there had been

recent burglaries in the area and

(2) the search was carried out in

the presence of only two juveniles.

There was no hint of a weapon and

no other obvious threat to the

officer's safety. In our case the

search was occasioned by an

A-10

individual's description of

appellant which included the fact

that he had a gun. This was neither

an anonymous tip nor one from a

confidential informant. It was a

complaint by a citizen who gave her

name and who supplied details of

a crime in progress. Thus the

officer, upon zecognizing appellant

from the description, had every

reason to be apprehensive about the

presence of a firearm. In addition,

several individuals were standing

around during the interrogation and

the officer, again being concerned

for his safety (not being certain

who might have the weapon) wanted

to keep an eye on everyone.

Assuredly he could have "frisked"

the brown paper bag. The question

A-11

is: was he constitutionally

mandated only to feel the bag

rather than to request that appellant

dump out the contents. In my view,

a rule that requires the making of

such fine distinctions in the

presence of possible imminent peril

asks too much of law enforcement

personnel. Nonetheless, such cases

as Robbins v. California, 453 U.S.

420, 101 S.Ct. 2841, 69 L.Ed.2d 744

(1981) and United States v. Ross,

456 U.S. 798, 102 S.Ct. 2157,

72 L.Ed.2d 572 (1982) appear to

mandate the result we reach with

respect to this "container search."

I therefore reluctantly concur.

GLICKSTEIN, J., concurring specially.

I concur with Judge Walden's

A-12

well-reasoned opinion and wish only

to comment upon the law vis a vis

the enforcement of law, while avoid-

ing repetition of whatever

expressions I may have earlier made

on this subject in State v. Drowne,

436 So.2d 916, 921 (Fla. 4th DCA),

pet. for rev. den., 441 So.2d 633

(Fla. 1983). Square one, to me,

is the recent expression of the

general rule -- not the exceptions

thereto -- as verbalized by the

United States Supreme Court in

United States v. Ross, U.S.

__, 102 S.Ct. 2157, 2166,

___—L.Ed.2d __—s« (1982), wherein

it commented upon the court's

earlier opinion in United States

v. Chadwick, 433 U.&. i, 97 S.Ct.

2476, 53 L.Ed.2d 538 (1977):

A-13

In ruling that the warrant-

less search of the foot-

locker was unjustified,

the Court reaffirmed the

general principle that

closed packages and con-

tainers may not be

searched without a warrant.

Cf. Ex parte Jackson,

96 -Ed. 877;

United States v. Van

Leeuwen, 397 U.S. 249,

90 S.Ct. 1029, 25 L. Ed.2d

282. In sum, the Court in

Chadwick declined to

extend the rationale of

the "automobile exception"

to permit a warrantless

search of any movable

container found in a

public place.

(Footnote omitted. )

The court further said in

discussing Robbins v. Caiifornia,

453 U.S. 420, 101 S.Ct. 2841,

59 L.Ed.2d 644 (1982), which was

decided without a majority -opinion:

One point on which the

Court was in virtually

unanimous agreement in

Robbins was that a

A-14

constitutional distinction

between "worthy" and

"unworthy" containers

would be improper. Even

though such a distinction

perhaps could evolve in

a series of cases in which

paper bags, locked trunks,

lunch buckets, and orange

crates were placed on one

side of the line or the

other, the central purpose

of the Fourth Amendment

tinction. For just as the

most frail cottage in the

kingdom is absolutely

entitled to the same

guarantees of privacy as

the most majestic mansion,

so also may a traveler who

carries a toothbrush and

a few articles of clothing

in a paper bag or knotted

scarf claim an equal right

to conceal his possessions

from official inspection

as the sophisticated

executive with the locked

attache case.

As Justice Stewart stated

in Robbins, the Fourth

Amendment provides protection

to the owner of every

container that conceals its

contends from plain view.

453 U.S., at 427, 101 S.Ct.

A-15

at 2846 (plurality opinion).

But the protection afforded

by the Amendment varies in

different settings. The

luggage carried by a

traveler entering the

country may be searched at

random by a customs officer;

the luggage may be searched

no matter how great the

traveler's desire to conceal

the contents may be. A

container carried at the

time of arrest often may be

searched without a warrant

and even without any specific

suspicion concerning its

contents. A container that

may conceal the object of

a search authorized by a

warrant may be opened

immediately; the individual's

interest in privacy must

give way to the magistrate's

official determination of

probable cause.

Id. at 2171 (footnotes omitted).

Finally, it said in rejecting

the precise holding in Robbins:

We reaffirm the basic

rule of Fourth Amendment

jurisprudence stated by

Justice Stewart for a

unanimous Court in Mincey v.

A-16

Arizona, 437 U.S. 385, 390,

98 S.Ct. 2408, 2412,

57 L.Ed.2d 290:

"The Fourth Amendment

proscribes all un-

reasonable searches and

seizures, and it is a

cardinal principle

that ‘searches conducted

outside the judicial

process, without prior

approval by judge-or

magistrate, are per se

unreasonable under the

Fourth Amendment--

subject only to a few

specifically established

and well-delineated

exceptions.’ Katz v.

United States, 389 U.S.

S.Ct... +507,

514, 19 L.Ed.2d 576]

(footnotes omitted)."

Id. at 2172.

The following remarks of Chief

Justice Burger in Chadwick are

worth repeating here:

In this Court the

Government again contends

that the Fourth Amendment

Warrant Clause protects

only interests traditionally

identified with the home.

A-17

Recalling the colonial

writs of assistance,

which were often exe-

cuted in searches of

private dwellings, the

Government claims that

the Warrant Clause was

adopted primarily, if

not exclusively, in re-

sponse to unjustified

intrusions into private

homes on the authority

of general warrants.

The Government argues there

is no evidence that ‘the

Framers of the Fourth

Amendment intended to

disturb the established

practice of permitting

warrantless searches

outside the home, or to

modify the initial clause

of the Fourth Amendment

by making warrantless

searches supported by

probable cause per se

unreasonable.

Drawing on its reading

of history, the Government

argues that only homes,

offices, and private

communications implicate

interests which lie at the

core of the Fourth Amend-

ment. Accordingly, it is

only in these contexts

that the determination

whether a search or seizure

A-18

is reasonable should turn

on whether a warrant has

been obtained. In all

other situations, the

Government contends, less

significant privacy values

are at stake, and the

reasonableness of a

government intrusion

should depend solely on

whether there is probable

cause to believe evidence

of criminal conduct is

present. Where personal

effects are lawfully

seized outside the home

on probable cause, the

Government would thus

regard searches without

a warrant as not "un-

reasonable."

We do not agree that

the Warrant Clause protects

only dwellings and other

specifically designated

locales. As we have noted

before, the Fourth Amend-

ment "protects people,

not places," Katz v.

United States, 389 U.S. 347,

, (oe, SO7,. Sil,

19 L.Ed.2d 576 (1967);

more particularly, it

protects people from un-

reasonable government

intrusions into their

legitimate expectations

of privacy. In this case,

A-19

the Warrant Clause makes

a significant contribution

to that protection. The

question, then, is whether

a warrantless search in

these circumstances was

unreasonable.

It cannot be doubted that

the Fourth Amendment's

commands grew in large

measure out of the

colonists’ experience

with the writs of assistance

and their memories of the

general warrants formerly

in use in England. These

writs, which were issued

on executive rather than

judicial authority, granted

sweeping power to customs

officials and other agents

of the King to search at

large for smuggled goods.

Though the authority to

search granted by the

writs was not limited to

the home, searches conducted

pursuant to them often were

carried out in private

residences. See generally

Stanford v. Texas, 379 U.S.

- S.Ct. 506,

509- 511, 13 L.Ed.2d 431

(1965); Marcus v. Search

Warrant, 367 U.S. 717, 724-729,

81 S.ct. 1708, 1712- 1714,

6 L.Ed.2d 1127 (1961);

A-20

Frank v. yen ans

S.Ct. 804,

3 L.Ed.2d 877 (1959).

Although the searches and

seizures which deeply

concerned the colonists,

and which were foremost in

the minds of the Framers,

were those involving

invasions of the home, it

would be a mistake to

conclude, as the Government

contends, that the Warrant

Clause _— conan intended

to on t

inesubious :4hee the hone.

First, the Warrant Clause

does not in terms distinguish

between searches conducted

in private homes and other

searches. There is also

a strong historical connec-

tion between the Warrant

Clause and the initial

clause of the Fourth Amend-

ment, which draws no

distinctions among “persons

— papers, and effects

ns eguarding against

unreasonable searches and

seizures. See United States

v. Rabinowitz, 339 U.S. 56

68, 70 S.Ct. 430, 445,

94 L.Ed. 653 (1950)

(Frankfurter, J., dissenting).

Moreover, if there is little

evidence that the Framers

A-21

intended the Warrant

Clause to erate outside

the home, there is no

evidence at all that they

intended to exclude from

protection of the Clause

all searches occurr out-

side the home. The sence

of a contemporary outcry

against warrantless searches

in public places was

because, aside from searches

incident to arrest, such

warrantless searches were

not a large issue in

colonial rica. Thus,

silence in the historica

record tells us little

about the Framers’ attitude

toward lication of the

Warrant e to the

search of res ts’

foot locker. t we do

know is that the Framers

were men who focused on

the —_ of that

but who intended the Fourth

Amendment to safeguard

fundamental values which

would far outlast the

specific abuses which

gave it birth.

Moreover, in this area we

do not write on a clean

slate. Our fundamental

inquiry in considering

Fourth Amendment issues

is whether or not a search

A-22

or seizure is reasonable

under all the circumstances.

Cooper v. California,

356 U.S. 58, 87 S.Ct. 788,

17 L.Ed.2d 730 (1967). The

judicial warrant has a sig-

nificant role to play in

that it provides the

detached scrutiny of a neutral

magistrate, which is a more

reliable safeguard against

improper searches than the

hurried judgment of a

law enforcement officer

“engaged in the often

competitive enterprise of

ferreting out crime."

Johnson v. United States,

* * , , * Ba

367, 369, 92 L.Ed. 436

(1948). Once a lawful

search has begun, it is

also far more likely that

it will not exceed proper

bounds when it is done

pursuant to a judicial

authorization "particularly

describing the place to

be saiiisoaalieien ~

persons or s to

seized." Further, a

warrant assures the in-

dividual whose property

is searched or seized of

the lawful authority of

the executing officer, his

need to search, and the

limits of his power to

search. Camara v.

A-23

Municipal Court, 387 U.S.

° p 5. Ae, re

1732, 18 L.Ed.2d 930 (1967).

Just as the Fourth Amend-

ment “protects people, not

places," the protections a

judicial warrant offers

against erroneous govern-

mental intrusions are

effective whether applied

in or out of the home.

Accordingly, we have held

warrantless searches un-

reasonable, and therefore

unconstitutional, in a

variety of ae s. 4:

century ‘ . Justice

Field, open for the

Court, incl within

the reach of the Warrant

Clause printed matter

traveling through the

mails within the United

States:

“Letters to gen

ackages o s kind

in the mail are as

rom

tion and in-

eee oa! except as to

eir outward form

and weight, as if they

were retained by the

parties forwarding

them in their own

domiciles. The

constitutional -

anty of the right

A-24

of the people to be

secure in their

papers against un-

reasonable searches

and seizures extends

to their papers, thus

closed against in-

ri gecnigew se wherever

they may be. Whilst

in the mail, they can

only be opened and

examined under like

Warrant, issued upon

similar oath or af-

firmation, particularly

describing the thing

to be seized, as is

required when papers

are subjected to search

in one’s own household."

Ex parte yacksgne

24 L.Ed. 877 (1878).

We reaffirmed Jackson in

United States v. Van Leeuwen,

o . . ce ,

25 L.Ed.2d 282 (1970), where

a search warrant was obtained

to open two packages which,

on mailing, the sender had

declared contained only

coins. Judicial warrants

have been required for