Amicus Curiae Brief — Colorado v. Bertine

No. 85-889

IN THE AUG 29 98E

Supreme Court of the United Statawerr se“

OCTOBER TERM 1986 Lane

—~<—— —

STATE OF COLORADO,

Petitioner,

Vv.

STEVEN LEE BERTINE,

Respondent.

ON WRIT OF CERTIORAR! TO THE SUPREME

COURT OF COLORADO

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL LIB-

ERTIES UNION, THE AMERICAN CIVIL LIBERTIES

UNION OF COLORADO, AND THE NATIONAL LEGAL

AID AND DEFENDER ASSOCIATION IN SUPPORT OF

THE RESPONDENT

LARRY W. YACKLE

Counsel of Record

Boston University

School of Law

765 Commonwealth Avenue

Boston, Massachusetts 0221 5

(617) 353-2826

GEORGE KANNAR

Counsel for Amici Curiae

American Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 944-9800

”

QUESTION PRESENTED

Whether a line police officer can,

consistent with the fourth amendment, conduct

a thorough search of a “backpack” found in a

vehicle simply because the driver has been

arrested for vi ‘ation of local traffic laws.

TABLE OF CONTENTS

QUESTION PRURDEEs cocceccoanseeveseeésbbeeeoun

TABLE OF igs ty i Perens

INTEREST OF AMICI CUE cocewescecséaboseweene

STATEMENT OF THE CRs © 06 0600660066066 60066RR

INTRODUCTION AND SUMMARY OF ARGUMENT........5

ARGUMENT

I.

Il.

III.

The routine search of luggage found

in a vehicle on the sole ground that

the driver has been arrested is

inconsistent with well-settled

fourth amendment standards governing

searches in general.

A. The Automobile Cases

B. The Luggage Cases

“. The Pretext Problem..........-10

None of this Court's prior decisions

has apvroved the field inventory

procedure followed in this case...18

A simple doctrinal formulation is

available to strike the balance

between genuine state concerns and

constitutionally protected privacy

interests in cases of this kind...39

COMCTAISION . ccccccceteessesseeebennsteeuneewe

TABLE OF AUTHORITIES

CASES

Cady v. Dombrowski,

413 U.S. 753 (1973) cccccccsccccceccseceedd®

Chambers v. Maroney,

399 U.S. 42 1970) cc ceeceececceccceeees 28

Delaware v. Prouse,

440 U.S. 648 (1979) wcccccccccccccccccceel&

Delaware vV- Van Arsdall,

106 S. Ct. 1431, 1441 (1986). cceeeeeeeeeel

Illinois v. Lafayette,

462 U.S. 1 Bh cccccceccccscccc cPpaseis

Missouri v. Blair,

No. DTT cdc cccccesccccccccccoccocceld

New York v. Belton,

FED U.S. 454 (1981)... eeeeeeceevceeeed, 13

New York v. Class, 106 S.Ct. 960 (1986).....28

South Dakota v. ae

428 U.S. 364 1976 ei. te keg ee ned 6 oSOEEs

State v.- Opperman,

247 N.W.2d 673 (S.D. err sy

United States v.- Chadwick,

433 U.S. l (1977) .eeeeeel2, 13. 22, 38, 39

United States v- Ross,

456 U.S. 798 (1982) oc cccsvccccceccveell, 13

Vale v. Louisiana,

399 U.S. 30 (1970) ccccccccccccccvvcccceeld

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. LTVecceevcveeeesn oeeree .-passim

U.S. Const. ’ amend. XIV. eeeeseee0e8e? eeeeee -passim

-iii-

INTEREST OF AMICI

The American Civil Liberties Union is a

nationwide, nonpartisan organization of more

than 250,000 persons, dedicated to preserving

and protecting the civil rights and civil

liberties guaranteed by law. The ACLU of

Colorado is one of its state affiliates. The

ACLU has long worked to protect the rights of

criminal defendants and has filed many

briefs, as counsel for a litigant or as

a

amicus curiae, in cases requiring the

interpretation of federal constitutional

provisions related to criminal cases.

The National Legal Aid and Defender

Association (NLADA) is a private, non-profit,

national membership organisation.

headquartered in Washington, D.C., whose

purpose is to ensure the availability of

quality legal services in civil and criminal

cases to all persons unable to retain

counsel. Specifically, NLADA represents

approximately 1,753 programs engaged in

-iv-

providing representation to indigents in

civil cases and 586 defender offices engaged

in providing representation to indigents

accused of criminal offenses. The membership

of NLADA, therefore, comprises most public

defender offices and legal services agencies

around the nation, as well as assigned é

counsel plans and private practitioners.

With the consent of the parties,

indicated by letters lodged with the Clerk of

this Court, we file this brief amicus curiae

in support of the respondent.

-V-

oer ee

mae ly Fie

‘

“Ww c |

‘Tid |

;

sy;

,

a

AS

ve

,

) |

-

’

4 " »

i” F

STATEMENT OF THE CASE

In this case, state prosecutors have

forced a two-year delay in a state criminal

defendant's trial in order to press

arguments regarding a search of the

defendant's belongings through the appellate

courts. Those arguments have been rejected

at all levels of the state court system.

The Supreme Court of Colorado has appraised

local law enforcement needs, grappled with

applicable precedents, and sustained an

individual's assertion of federal right .*

Now state prosecutors ask this Court to

substitute its own judgment regarding law

enforcement needs in Colorado for that of

that state's highest court and to unleash

the Colorado police to do precisely

1 Cf. Delaware v. Van Arsdall, 106 S.

Ct. 1431, 1441 (1986) (Stevens, J-, dissenting)

(pointing out the implications of any attempt

by this Court to monitor state court

judgments in favor of litigants asserting

federal claims).

what the Colorado Supreme Court has forbidden

them to do.”

The historical facts are reported in the

opinion written by the Colorado Supreme

Court. Officer Toporek of the Boulder Police

Department stopped a truck driven by the

respondent, Steven Bertine, and arrested

Bertine for driving under the influence. ?

A second officer, Reichenback, arrived at the

scene as a “backup” and, on Toporek's

request, handled the disposition of the

truck. Reichenback was another line police

officer like Toporek. He was not employed by

the city of Boulder to superintend impounded

vehicles; nor did he work for the private

company that ultimately took temporary

custody of Bertine's truck. Nevertheless,

without consulting Mr. Bertine, Reichenback

. Any reversal and remand on the

federal issue presented here will, of course,

be subject to the state supreme court's

independent interpretation of state law.

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

364 (1976), with State v. Opperman, 247

N.W.2d 673 (S.D. 1976).

-__

conducted an “inventory” of the truck and its

contents. His examination of the truck

itself was superficial. Reichenback devoted

primary attention to a "backpack" tucked

behind the seat. He unzipped the main

compartment, unzipped a nylon bag he found

inside, removed the covers from tins inside

the bag, and, finally, discovered the

contraband in issue here.

Officer Reichenback testified that he

acted pursuant to 4a local directive

authorizing a “detailed inspection and

inventory" of vehicles “used in the

commission of a crime." The Colorado Supreme

Court held, however, that as a matter of

local law Reichenback had “a number of

alternatives” from which to choose. While he

was authorized to behave as he did, he was

also free to seal the truck before it was

4 We do not treat threshold questions

regarding the validity of the stop and arrest.

towed or to drive it to the nearest lot and

lock it. 706 P.2da at 413 n.2.

Bertine moved to Suppress ti.» contraband,

the trial court sustained his motion on state

law grounds, and the Colorado Supreme Court

affirmed on the ground that the search

violated the fourth amendment, applicable

through the fourteenth. This Court then

granted certiorari to review the state

Supreme court's judgment in advance of trial.

INTRODUCTION AND SUMMARY

OF ARGUMENT

The problem presented in this case is

best illuminated by making clear what is not

involved. This is not a case about vehicle

inventories, but rather a case about searches

of luggage. Certainl,, this is not a case

about the validity of police behavior

respecting illegally-parked or abandoned

yehicles. See South Dakota v- Opperman,

supra. Mr. Bertine did not leave his truck

in a no-parking zone, allow his allotted time

to expire ina metered space, Or abandon his

truck as a derelict on the streets of

Boulder. To the contrary in this instance,

Bertine responded to Officer Toporek's

command to pul.s over ard was thereafter

denied an opportunity to see to the proper

disposition of his own vehicle.

Nor does this case concern the arrest of

a suspect whose vehicle was lawfully parked.

In cases of that kind, the police may search

the suspect's person and the area into which

-5-

the suspect can reach to conceal or destroy

evidence. There is, however, no

constitutional justification for any further

intrusion into a lawfully-parked vehicle

Simply because its driver is to be taken into

custody. Finally, this case has nothing to

do with administrative searches of items in

the possession of Suspects about to be placed

in a jail cell. In cases of that kind, this

Court has permitted inventory inspections--at

the stationhouse. Illinois vy. Lafayette, 462

U.S, 640 (1983),

This case is here Only because it is

conceded that Bertine's truck could not

lawfully be Parked where he was arrested.

Furthermore, inasmuch as Bertine was placed

under custodial arrest, he could not be asked

to move his own vehicle to a place where it

could be parked lawfully.

The problem here is further defined by

the particular way in which Officer

Reichenback responded to the circumstances

presented. He had other options, options

that would have contemplated a lesser

intrusion upon Mr. Bertine's privacy. He

chose, however, to pursue the most intrusive

course of action imaginable. Then and there,

without asking Bertine's permission, without

knowing how long Bertine would be detained,

without knowing whether the garageman would

ultimately impound the vehicle, Reichenback

conducted a thorough search of luggage in the

truck--down to the small tins he found inside

a zippered bag inside the backpack. This is

the behavior that the Colorado Supreme Court

condemned and which the prosecution seeks to

defend here.

Our argument is in three parts. First,

we point out that the approval of Officer

Reichenback’s search of luggage in this case

would unuwercut this Court's recent decisions

regarding the treatment of vehicles and their

contents in the field. Fourth amendment

Limitations fixed for searches incident toa

arrest and ordinary searches on probable

cause would be superceded, in effect, by a

much broader police authority to conduct an

inventory. The approval of an inventory of

the contents of luggage found within

vehicles, moreover, would undermine the

Court's many precedents distinguishing

automobiles, in which citizens may have a

diminished expectation of privacy, and other

containers--in which the fourth amendment 's

protection for privacy is much stronger. In

this connection, we discuss the recurring

problem of the pretextual use of inventories

to circumvent established limits on searches

Carried out in hopes of finding criminal

evidence,

Second, we take up the Court's

precedents, particularly Opperman and

Lafayette, and demonstrate that this Court

has never upheld an inventory search of the

kind and scope undertaken here. In this, we

recall the Court's familiar practice of

examining particular fourth amendment issues

in turn, without attempting to resolve a

range of fact-sensitive problems by reference

to unitary theories that fail to capture the

richness of the circumstances in which the

police, and the fourth amendment, must

operate.

Thiri, we offer a doctrinal formulation

that strikes a fair balance between

legitimate governmental interests in cases of

this kind and the individual's constitutional

rights under the fourth amendment. The Court

should hold that in routine cases the police

cannot conduct an inventory without first

obtaining permission from the owner and that

any such inventories must be conducted by

officials with custodial responsibility for

impounded vehicles and property rather than

by line police officers who may be tempted to

use the authorit © to take an inventory to

mask a search for evidence of crime.

I. THE ROUTINE SEARCH OF LUGGAGE FOUND

IN A VEHICLE ON THE SOLE GROUND THAT

THE DRIVER HAS BEEN ARRESTED IS

INCONSISTENT WITH WELL-SETTLED FOURTH

AMENDMENT STANDARDS GOVERNING

SEARCHES IN GENERAL

If local police were permitted to make

thorough searches of luggage found in

vehicles under a sweeping authorization to

take an “inventory” of their contents, the

great body of this Court's recent fourth

amendment precedents, painstakingly developed

On a case-by-case basis, would be swallowed

up by the rising tide of so-called

“administrative" process.

A. The Automobile Cases

If Officer Reichenback's conduct were

judged against ordinary fourth amendment

standards, the judgment below would be

affirmed. His meticulous examination of the

contents of Bertine's luggage, simply because

it was found inside the suspect's truck, far

exceeded the bounds of a search incident to

arrest. The controlling precedent, New York

-10-

—_—

v. Belton, 453 U.S. 454 (1981), established

that the passenger compartment and containers

therein may be searched for weapons and

evidence that the suspect might reach and

destroy. Belton might, accordingly, allow

Reichenback to check the backpack for a gun,

but it would hardly validate reaching inside,

extricating the zippered ag, opening that

smaller container, finding the tins, opening

them, and, finally, examining their

contents.

Similarly, Reichenback's behavior fell

well below standards fixed for ordinary

searches for evidence. Bertine was arrested

for DWI. If Reichenback had proposed to

search for liquor, the scope of the search

actually undertaken was, again, far broader

than ihe fourth amendment would allow.

United States v. ROSS, 456 U.S. 798 (1982).

No one could reasonably have believed that

Liquor would be found in the tins that

4 So far as we are aware, the

prosecution made no attempt to justify

Officer Reichenback's behavior under Belton.

————

Reichenback opened. And, certainly, no one

had probable cause to search for evidence of

any other offense.

B. The Luggage Cases

More important still, Reichenback's

behavior ignored a fundamental distinction

hammered out in other “luggage” cases,

particularly United States v. Chadwick, 433

U.S. 1 (1977). Reichenback did not merely

search Bertine's vehicle. He also carefully

searched his luggage. Searches of vehicles

may be subject to special fourth amendment

rules because of the mobility of cars and the

diminished expectation of privacy that

citizens have in them, given the pervasive

regulation to which they are subject. South

Dakota v. Opperman, supra, at 367-69. But in

the case of luggage, typically used to

transport private materials, neither mobility

(in the sense of portability) nor regulation

diminishing the ordinary citizen's legitimate

oj} 2=

expectation of privacy obtains. Even when

luggage is found, by chance, in an

automobile, the police must have probable

cause and a warrant to search in other than

exigent circumstances. This is th clear

meaning of United States v- Cnadwick. If the

inventory in the case at bar stands, Chadwick

must effectively go--along with Belton and

Ross.

The reach of the inventory authority

contended for in this case is not restricted

to cases involving vehicles at all. Indeed,

if the inventory in this case wins approval,

we can expect prosecutors in the next case to

claim that the police can inventory the

contents of a house--on the theory that it is

in their custody while they await a warrant

authorizing an ordinary search for specified

evidence. Cf. Vale v- Louisiana, 399 U.S. 30

(1970).

Cc. The Pretext Problem

The blanket authority to conduct

o13-

inventories asserted by the prosecution in

this case would, if recognized, invite

pretextual use in aid of ordinary criminal

investigations. Time and again, this Court

has insisted that fourth amendment doctrine

must be sensitive to the possibility of

abuse, and police authority to invade

individual privacy for administrative

purposes has often been checked because such

authority might be used pretextually. The

requirement in Opperman and Lafayette, for

example, that inventories must be carried out

on the basis of standard operating procedures

was established to protect against the

selective employment of the authority to make

an inventory in order to mask searches for

evidence in the absence of probable cause.

5 In a related case before the Court

this Term, we argue that the first line of

defense against the pretext is the

establishment of fourth amendment doctrine

groomed to minimize the opportunities for its

abuse. Brief of Amici Curiae, American Civil

Liberties Union and the Civil Liberties Union

of Missouri, Missouri v. Blair, No. 85-303.

We also argue in Blair that courts should ask

@j4e

In this instance, it is hardly sufficient

that Officer Reichenback was permitted under

a local guideline to behave as he did.

First, as the Supreme Court of Colorado made

clear, he was also authorized to deal with

the situation in at least two other

ways--both of which would have been more

sensitive to the privacy interests at stake.

Thus Reichenback did not simply follow

orders, doing what he was required to do

according to rigid rules designed to limit

discretion in the field. He exercised the

very kind of discretion that lends itself to

the pretext.

Second, and more fundamentally, even a

more rigid rule demanding that field

inventories be conducted would have neglected

the privacy interests of citizens in Mr.

not only whether police behavior in a

particular case can be justified on some

constitutional basis, but whether the police

complied with fourth amendment standards

governing the purposes for which they

actually acted.

=15-

Bertine's place. As Justice Rehnquist warned

in Delaware v. Prouse, 440 U.S. 648, 664

(1979) (dissenting opinion), the problems

associated with administrative inspections

are not met by a simplistic, “misery loves

company" insistence that everyone's privacy

must be sacrificed. Rather, the possibility

of pretextual use must be met forthrightly--

with doctrine framed to discourage abuse in

each kind of case in turn.

The inventory conducted in this case

presented special dangers of pretextual use.

Tne ordinance under which Officer Reichenback

acted specified a “detailed” inspection and

"inventory" if the vehicle in question had

been “used in the commission of a criminal

offense."° That, in turn, is precisely the

6 Officer Reichenback conceded on the

stand that the ordinance could not be read

literally--such that every vehicle used in

the commission of a crime must be impounded.

That, of course, would mean that every car

stopped in traffic would be impounded and its

contents inventoried. No one suggests that

any such practice prevails in Boulder.

-l16-

kind of case in which the police may be

tempted to use the cover of such an inventory

to mask a search for evidence of the offense

in which the vehicle was involved. Indeed,

the circumstances of this case generate the

unmistakeable odor of the classic pretext.

Boulder is the home of the University of

Colorado, whose grounds were visible from the

place where Bertine's vehicle was stopped.

JAee Po 430 HS Bertine, wearing “long red

hair," a beard, and glasses, was driving

during “early morning hours" with only his

dog for company- J.A., pp. 4-5, 10- Ample

parking space was available, also within

sight of the scene, and it would have been

simple enough to dispose of the truck pending

Bertine's return by parking and locking it

nearby. J-A., PP-» 43, 50. Nonetheless,

Officer Reichenback chose this occasion for a

thoroughgoing exploration of both the vehicle

and Mr. Bertine's backpack. He conceded,

moreover, that he devoted primary attention

-l17<

to the backpack, digging into the zippered

bag he found inside and, of course, into the

tins inside the bag. The trial judge

described the inventory of the rest of the

vehicle as “slip shod." J.A., p. 8l.

We are not in a position to accuse the

officer in this case of searching the

backpack on the hunch that his youny suspect

might pe carrying drugs and then explaining

nis unconstitutional behavior away as an

inventory conducted in the field. Yet the

circumstances of this case, and others we all

might anticipate, underscore the real threat

of pretext with which the Court must

contend. The approval of what Officer

Reichenback did here would amount, we think,

to tempting honest police officers toward

duplicity.

II. NONE OF THIS COURT'S PRIOR DECISIONS

HAS APPROVED THE FIELD INVENTORY

PROCEDURE FOLLOWED IN THIS CASE

The prosecutors in this case, and the

=} @-

os

Solicitor General as amicus curiae, suggest

that Opperman and Lafayette have already

decided the question presented here. They

argue, essentially, that by approving the

inventories conducted in the quite different

circumstances of those cases, the Court has

already boxed itself in--and cannot manage in

tnis case to disapprove an inventory without

departing from its precedents. This is a

mistaken position, ignoring both the Court's

consistent recognition that a different

factual setting often presents a different

mix of factors and considerations that

rightly go into a determination of fourth

amendment doctrine, as well as the very real

bases for distinguishing what was said in

prior cases from what should and must be said

here.

This Court has long-since abandoned the

notion that search and seizure law can be a

seamless web. The world the fourth amendment

must address is far too complex for that.

-]19-

There are too many confrontations between

police officers and citizens, too many

variations in the circumstances attending

such confrontations. It is far more

profitable to identify themes and values at

stake in fourth amendment cases, to arrange

cases within rough categories for analysis,

and then to balance competing state and

individual interests in a doctrinal

formulation that promises to work with

respect to each category in turn. Even then,

it is often necessary to examine che facts of

particular cases in order to apply doctrine

framed at a higher conceptual level.

Chief Justice Burger was clear in

Opperman regarding the scope of the Court's

inquiry. The question at bar was whether the

police had violated the fourth amendment

“when they conducted a routine inventory

search of an automobile lawfully impounded by

police for violations of municipal parking

Ordinances." 428 U.S. at 365 (emphasis

~

supplied). The Court balanced the interests

involved and came to a judgment which now

constitutes a referent for courts handling

cases of that kind. In Lafayette, the Court

addressed the different mix of fourth

amendment considerations in stationhouse

inventories. The Chief Justice was again

explicit in his opening statement of the

issue: “The question presented is whether,

at the time an arrested person arrives at a

police station, the police may, without

obtaining a warrant, search a shoulder bag

carried by that person." 462 U.S. at 641

(emphasis supplied). The Court thus

recognized in Opperman and Lafayette that

different contexts beget different arguments,

analyses, and results.

Conceding that Opperman had only to do

with searcnes of illegally parked or

abandoned vehicles and did not so much as

address the validity of luggage searches, the

United States nonetheless contends that that

=-2l-

\

case provides implicit support for the police

conduct in issue here. The Court, it is

said, treated automobiles as merely a species

of container; what was said about one

container, argues the Solicitor General, was

said about all. This simply is not so. The

Court in Opperman was at pains to explain

that automobiles are not ordinary

containers. They are affected with a

diminished expectation of privacy, flowing

from their very nature, the manner in which

they are used, and the regulatory regimes to

which they are subject. Luggage, of course,

is quite different--as the Court explained in

Chadwick. ’”

7 We recognize the Court's concern

lest police officers be required to make fine

distinctions between and among types of

containers in order to comply with the fourth

amendment. We think, however, that the

Boulder police should have little difficulty

telling a backpack from a truck. For all

that, houses, too, may formalistically be

considered only large containers. But we

assume the police also can distinguish a

split-level from a convertible.

«230

The inventory approved in Opperman was

tied tightly to the recognized need to deal

with illegally parked or abandoned vehicles,

which present a range of health and safety

hazards and must occasionally be towed to

impoundment lots. In circumstances of that

kind, the Court approved routine inventories

in service of the interests stated--as part

of the caretaking function being performed.

The search conducted here, by contrast,

reached directly into luggage in which

Mr. Bertine retained a full measure of

privacy.

It is true that Opperman allowed the

police to open 24 glove compartment, and we

acknowledge that citizens may use cavities

attached to a vehicle in much the way they

routinely use luggage to store valuables.

Yet as Justice Powell made clear in Opperman,

that case granted the police "no license...to

examine all the contents of [impounded]

automobiles.’ Compartments amounting to

-23<

parts of a car were subject to search--not

luggage that happened to be inside.®

Having derived no support from Opperman,

the United States shifts to Lafayette and

attempts to analogize the search of

Mr. Bertine's luggage on the street to the

inventory of an arrestee's possessions

immediately prior to the suspect's being

placed in a jail cell. Now the individual's

“substantial” privacy interest in luggage, as

Opposed to a vehicle, is conceded. Still,

the Solicitor General insists that this

search was valid--by analogy to “incidental

administrative step[s]" routinely taken at

the stationhouse before a suspect is

8 The precise question pretermitted in

Opperman, whether luggage found in abandoned

vehicles may be subject to inventory, is not

presented here. Mr. Bertine abandoned

neither his car nor his luggage. The police

themselves precipitated the circumstances

under which the truck was impounded, by

causing Bertine to pull over and by making a

warrantless arrest. They plainly were not

engaged in the routine disposition of

derelict vehicles.

24

incarcerated. This argument is without

foundation.

Put simply, the field search conducted in

the case at bar formed no part of ordinary

procedures for detaining criminal suspects.

What the police were justified in doing with

respect to Mr. Bertine's belongings carried

by him to the station is one thing; what they

could do with respect to luggage left

elsewhere is quite another.

In a real sense, the inventory approved

in Lafayette resulted in police behavior

going only a short distance beyond what was

permissible as a search incident to arrest.

None of the further doctrines mentioned

previously was undercut; nor did the

stationhouse inventory in Lafayette present

the same opportunity for pretextual use as

would be suggested by a rule permitting field

searches like the one conducted here. The

working assumption in Lafayette was that when

the police make a valid warrantless arrest,

-25-

the suspect necessarily suffers an enormous

intrusion upon personal privacy and that the

further imposition contemplated by an

inventory of things in his or her possession

is minor by comparison. Then, too, the

extraordinary interests protected by an

inventory at the station auger for approval

of such an intrusion in those peculiar

circumstances. Those interests are by no

means so significant in the case at bar--in

which the arresting officers could anticipate

that Bertine would be detained only a short

while.

First, the Court recognized in Lafayette

that suspects admitted to jail may injure

themselves with personal items (belts, drugs,

knives) if those items are not taken from

them before they are placed in acell. We

agree, of course, but the argument carries

only the point that the police should be

permitted to search the person of arrested

persons bound for a cell and to separate them

~

from ordinary belongings.” It says nothing

regarding the search of luggage, even at the

stationhouse; certainly, this argument has

nothing to do with searching luggage in the

field.

Second, the Court said in Lafayette that

the police may be neld responsible for items

taken from suspects admitted to jail and thus

should be allowed to inventory belongings

held for safekeeping while the owner is

detained. This consideration has two spurs.

It is argued initially that the police may

act paternalistically to protect a suspect's

belongings from third parties--when the

suspect is unable personally to do so. The

idea that the police should protect a

citizen's goods from thieves and vandals is

9 The Court in Lafayette carefully avoided

the question of "strip" searches. 462 U.S.

at 646 n.2. Nor did the Court treat the

special problems raised when jailed suspects

require access to materials or documents

essential to the exercise of rights retained

in confinement or to the preparation of a

defense.

37

appealing; we hardly wish to inhibit genuine

public service. Yet if the value isolated

under this heading is only the individual's

‘interest in his or her possessions, then it

seems only reasonable that the police ask the

Owner whether their assistance (contemplating

a search of luggage) is wanted. Said another

way, the police should not act on the basis

oft assumed consent on the part of the

individual when the ieaiiinian concerned is

available to be asked for explicit consent.

Opperman, at 392-93 (Marshall, J.,

dissenting); cf. New York v. Class, 106 S.Ct.

960, 975 (1986)(White, J., dissenting with

Stevens, J.); Chambers v. Maroney, 399 U.S.

42, 64 \(.970) (Harlan, J., dissenting).

In the stationhouse situation in

Lafayette, it was difficult, perhaps, for the

police to ask for instructions from a

jail-bound suspect regarding a shoulderbag on

his person. In Opperman, moreover, the Court

worried that the owner of an abandoned car

might not be close at hand to give explicit

‘ -28-

consent. In this case, however, and in all

routine traffic arrest cases like it, the

driver is by hypothesis on the scene and

available for consultation regarding che

disposition of luggage.

The other spur of the “property interest”

consideration has it that an inventory may be

needed to encourage the police themselves to

deal carefully and honestly with a suspect's

possessions and to deter false claims of

theft or carelessness made by suspects

later. Evidently, the idea is that an

item-by-item accounting made at the outset of

a detention can at least narrow down the list

of suspects within the police department if

something turns up missing. Realistically,

an inventory is a very rough tool in this

context. It neither prevents the first

officer from omitting some items from the

inventory, nor prevents suspects from

claiming later that that is what happened.

-29-

Once again, in the stationhouse situation

in Lafayette, the suggestion of an inventory

to protect against police misconduct or false

claims may have made some sense. The suspect

is typically present to watch officers go

through his or her things and thus can

monitor the procedure being followed.

Mr. Bertine was not so fortunate. He was in

Officer Toporek's squad car headed for the

station when Officer Reichenback searched the

belongings Bertine was forced to leave

behind. The inventory Reichenback prepared

bore only the most remote relationship to

discouraging either police thefts or false

charges of theft.

Third, the Court recognized in Lafayette

that an inventory at the stationhouse may be

needed to identify a suspect about to be

incarcerated. There will be cases, of

course, when recalcitrant criminal suspects

refuse to cooperate by giving their names, or

when suspects are unable to speak for

themselves and their identity can be

-30-

determined only by looking at operators'

permits and the like. It is, of course,

extraordinarily important tnat the police

know who it is they are about to put in a

jail cell--to take account of physical or

mental disabilities that may present special

risks, to facilitate the notification of

relatives or friends, and simply to develop

accurate records of this most dramatic

deprivation of liberty.

In Lafayette, the Court raised this

“identification” point in passing--to support

the general rule that inventories just prior

to incarceration are permissible. Yet the

Court hardly held tnat a thorough inventory

is justified if the only purpose is to

identify a suspect. Certainly in cases like

this one, when a vehicle is pulled over by

the police, the identification of the driver

is the first matter to be resolved. Officer

Toporek asked Mr. Bertine for his license and

registration immediately upon approaching the

@3l<-

truck. It would be ludicrous to contend that

the inventory conducted later by Reichenback

was in any way justified to ascertain

Bertine's name and edévens. The United

States, to its credit, attempts no such

argument.

Finally, the Court said in Lafayette that

“dangerous instrumentalities" such as "razor

blades, bombs, or weapons" can be concealed

in “innocent-looking articles taken from the

arrestee's possession." This is where the

United States invests its real hopes. If the

Court can be persuaded to announce fourth

amendment doctrine tor cases of this kind

that will permit the police to search

whenever a bomb "might" be inside Luggage

with which they come into contact, then this

case, and by extension most search and

seizure cases, will be resolved in favor of

governmental power.

To be effective against bombs, the police

would have to search the most "“innocent-

=32-

looking" luggage--which, of course, would be

the most likely receptacles to be chosen by

terrorists. Not only shoulderbags in the

possession of suspects headed for jail or

backpacks found in trucks driven by citizens

arrested for DWI, but containers of all

kinds, shapes, and sizes would have to be

investigated. Cars parked near governmental

buildings or, indeed, shopping centers;

houses located near defense installations.

There is very simply no logical stopping

place if it is once posited that the police

can search to detect bombs they have no

reason to think will actually be found. In

any event, DWI arrest cases hardly mark a

sensible starting place. We hope the country

has not yet come to such a pass.

Vehicle and luggage bombs are rare in

this country, thank goodness; certainly there

is no rash of them in Boulder, Colorado.

Reasonable fourth amendment doctrine must,

accordingly, reject the open-ended hyperbole

which has it that the police, in Boulder or

=33<

anywhere else, must have the authority to

conduct routine searches of automobiles and

luggage to check for evidence of terrorist

attacks. Any such authority would sweep away

well-settled principles of constitutional law

limiting police intrusions upon privacy and,

of course, pave the way for pretext searches

10 In this

in a range of instances.

connection, we note that the model rules

adopted by the Police Foundation's Project on

Law Enforcement Policy suggest no realistic

need for any such blanket authority to

search. The relevant rule, reproduced in

Appendix A, explicitly instructs officers not

to open containers found in cars in cases

such as this one. In Appendix B, we

reproduce the rule guiding police officers in

Boston. That rule directs the police to do

precisely what we suggest is constitutionally

required--simply to ask the person arrested

10 Cases in which the police have

evidence that a bomb is hidden in luggage

present a quite different question.

-34-

what he or she would like done with personal

property.

This Court had no part of any such

argument in Lafayette, where bombs were

mentioned only in the context of stationhouse

bailments during which a jailed suspect's

belongings would be kept inside a public

building, near officers and private citizens

who frequent such buildings. Even at that,

the more serious concern lay with “weapons”

that might endanger anyone handling luggage

without knowledge of its contents. When a

decision has been made to incarcerate a

suspect for some period of time, and it is

known, accordingly, that the suspect's

belongings will be in police custody in the

interim, it may be reasonable to hold that an

inventory check for weapons is permissible.

That is all that was held in Lafayette.

In this case, and in cases like it,

however, no special concerns regarding

weapons arise. To be sure, the officers here

-35-

were briefly in the vicinity of Mr. Bertine's

backpack, but it is disingenuous to suggest

that they needed to search it to protect

themselves from weapons. They were entitled

to conduct a search incident to arrest

primarily for their own protection; once they

exhausted the scope of that search, their

authority to make an on-the-scene search for

self-protection was spent.++

It is also true that Bertine's truck was

towed away and was brietly detained in a

private impoundment yard, where it is

conceivable (though most unlikely) +}? that

11 Officer Reichenback himself provided

evidence that in the routine case the threat

of danger is minimal. He conceded on the

stand that he would not have opened the trunk

of an ordinary automobile--because the driver

could not have reached there to retrieve a

weapon. Asked whether an inventory might be

conducted for some other purpose, he

responded that he simply never searched

trunks without a warrant. J.A., p. 45.

12 As opposed to the primitive

conditions that obtained at the impoundment

lot in Opperman, the lot in this case was

secured by a six-foot fence. The gate was

locked. In addition, the lot was frequently

patrolled. J.A., p. 70.

-36-

it was accessible to towing service

employees, other officers, or others.

Indeed, one can speculate that the truck

would have been near and accessible to

persons who might be harmed by a weapon even

if Officer Reichenback had exercised his

authority to have it towed to the public

parking lot just up the street. Yet to point

out these possibilities is to underscore the

scope of ‘the authority to search contended

for in this case. If luggage in this truck

could be searched before the truck was parked

in a local lot, why not luggage in all the

vehicles parked there by their owners? Why

not luggage in any vehicle parked in any

public place? There is nothing to choose

between such vehicles and Mr. Bertine's

truck; the only argument for a search of the

backpack (under this heading) is the mere

possibility that it might contain a weapon-~a

possibility that obtains with respect to any

a37-

luggage in any vehicle.??

There is only one realistic way out of

this dilemma. It is the route the Court has

taken many times in the past. The mere

possibility that a weapon may be hidden in a

place regarding which a citizen enjoys a

legitimate expectation of privacy is

insufficient in itself to justify a search.

When, however, there is evidence that a

weapon is there and poses a danger to the

police or the public, a different rule may be

13 The Solicitor General attempts to

bootstrap the search in this case by pointing

Out that the “containers” taken from Mr.

Bertine's vehicle were to be "placed into

Property for safe-keeping.”

So, of course, was the footlocker in

Chadwick. In this case, moreover, Bertine

was released on bond within hours after his

arrest--making the duration of any such

"safekeeping" minimal at best. The typical

arrest for a traffic offense would, of

course, contemplate no more lengthy detention

than occurred here--in a case in which

evidence of other crimes was found before the

Suspect posted bond and was released. In the

routine case, officers at the scene know full

well that any impoundment will last a very

short time.

-38-

appropriate. Chadwick, 433 U.S. at 15 n. 9;

Cady v. Dombrowski, 413 U.S. 753 (1973).

III. A SIMPLE DOCTRINAL FORMULATION IS

AVAILABLE TO STRIKE THE BALANCE

BETWEEN GENUINE STATE INTERESTS AND

CONSTITUTIONALLY PROTECTED PRIVACY

INTERESTS IN CASES OF THIS KIND

This case calls for hard-minded

decision-making about real situations that

repeat themselves routinely in daily life.

The Court cannot blind itself to the

implications of the inventory conducted

here--to tne signal that a reversal of the

Colorado Supreme Court's decision would send

to police departments across the country. If

settled doctrine regarding the limits of

police authority under the fourth amendment

is not to be jettisoned sub silentio, and if

the police are not to be tempted into the

pretextual use of an authority to conduct

inventories, the Court must write an opinion

that pays more than lip service to the

-39-

genuine privacy interests at stake. Definite

lines can and must be drawn for cases of this

Kind--lines that hold che police to standards

that do not, on the precedents, control in

other situations. An opinion drawing such

lines is plainly feasible; we have offered

bases on which both Opperman and Lafayette

can be distinguished.

Once again, it is well to be clear on the

kind of case that is presented here. The

luggage in this case was searched, by

hypothesis, only because it was in a vehicle

the police had stopped and because the driver

was unable, because of his arrest, to see to

1ts disposition personally. The Court need

say nothing here about separating a criminal

suspect from his or her possessions before

incarceration or what the police might do in

cases in which the identity of an individual

is not readily determined in the routine

fashion.

-40-

The only question is the disposition of

luggage at the scene. The simplest answer is

that the police should do what the driver

would do if he or she were able to make

arrangements personaliy. In the routine

case, that would be to move the vehicle to

the nearest lawful parking place and there to

park and lock it. The fourth amendment does

not insist that police officers drive private

vehicles themselves. Officers might

reasonably hesitate to risk mechanical

failure or accident along the way, and, in

any event, the operation of a vehicle might

contemplate yet another intrusion upon the

owner's privacy. If, however, a vehicle can

be routinely towed to a police impoundment

yard (or to a private yard designated to

receive vehicles impounded by the police), it

can just as easily be towed to an —

parking lot. Then, the owner can either

retrieve the vehicle and the luggage upon his

or her release, or arrange for family or

-41-

friends to do so. There is nothing elaborate

in this. This is the way that countless

cases are handled every day--without engaging

all the time, expense, and constitutional

difficulties associated with impoundment.

There may be instances in which the owner

would prefer the added protection for luggage

attending impoundment by the police. When,

for example, the contents are particularly

valuable, the owner may be prepared to accept

the intrusion upon privacy associated with an

ichicties in order to ensure that luggage is

not exposed to ordinary theft in a parking

lot. The critical fact, in cases of the kind

considered here, is that the owner of such

luggage is necessarily available to be

14 The Court should insist that

consulted.

officers simply ask suspects to be taken into

custody in these circumstances what they

14 We do not speak to the "standing"

difficulties that might be presented in cases

in which someone other than the driver has a

privacy interest in luggage.

-42-

want done with their luggage. Such a rule

protects the suspect's property, and

addresses the various related interests

discussed above, far better than the approval

of a blanket authority to conduct a thorough

search without regard for the individual's

wishes. If the individual declines to

authorize the impoundment of luggage and,

instead, asks the police to nave the vehicle

containing it towed to a parking lot, such a

request should be resp-cted.

Special circumstances will arise

occasionally, and in some narrowly-defined

cases we anticipate that the Court may

reasonably establish exceptions to the

general rule we advance. In the extremely

rare instance, for example, in which there is

reason to believe that luggage contains a

bomb or weapon, an emergency authority a

conduct a reasonably-defined search may be

recognized.

-43-

Even in exceptional cases, however, line

officers in the field should not be

authorized to conduct inventories

themselves. Any such authority would

resurrect the temptation to use the inventory

as a pretext. Instead, other public

employees, charged not with the investigation

of crime but only with the administrative

disposition of vehicles, luggage, and the

like, should be assigned the exclusive task

of making inventories for their independent

purposes. Such a separation of functions

will not guarantee the elimination of pretext

searches, but it promises to reduce their

incidence in a relatively painless manner.

In the run of cases, the police will be

able to follow the rule we suggest without

difficulty. Refinements, of course, should

await concrete cases in which competing

interests can be identified and resolved

against a definite factual backdrop. In the

end, routine cases of this kind call only for

-44-

common sense--not the bad law that harder

cases promise to make.

CONCLUSION

For the reasons stated above, the Court

should affirm the decision of the Colorado

Supreme Court. The opinion should explain

‘that the inventory search conducted by

Officer Reichenback violated the fourth

amendment inasmuch as it was undertaken

without consultation with and approval by

Mr. Bertine.

Respectfully submitted,

LARRY W. YACKLE

Counsel of Record

Boston University

School of Law

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-2826

GEORGE KANNAR

Counsel for Amici Curiae

American Civil Liberties

Union

132 West 43rd Street

New York, New York 10036

(212) 944-9800

-45-

APPENDIX A*

Rule 603. Prisoner's Property.

A. Definition. When a person is

arrested in or around a vehicle which he

owns or has been authorized to use, and

the vehicle is not otherwise subject to

seizure, it shall be classified as

prisoner's property.

B. Disposition of Prisoner's

Property. A prisoner shall be advised

that his vehicle will be taken to a

police facility or private storage

facility for safekeeping unless he

directs the officer to dispose of it in

some other lawful manner. In any case

* Model Rules for Law Enforcement:

Searches, Seizures and Inventories of Motor

Vet.icles, Approved Draft, April, 1974, p. 63

(emphasis supplied).

«the

where a prisoner requests that his

vehicle be lawfully parked on a public

street, he shall be required to make his

request in writing.

If the vehicle is found to be the

property of a person having no criminal

involvement in the offense, such person

shall be notified of the location of the

vehicle as soon as practicable.

&. Initial Procedure with Respect

to Prisoner's Property. If a vehicle

classified as prisoner's property is not

taken into police custody, it shall not

be inventoried. If it is necessary to

take a prisoner's property vehicle into

police custody, the vehicle should be

taken to a police facility or a location

in front of or near a police facility.

Immediately upon arrival at a police

facility, if the vehicle is not locked,

the arresting officer shall remove from

-47-

the passsenger compartment all

containers--such as boxes or suitcases--

and any other personal property which

can readily be seen from outside the

vehicle and which reasonably has a value

in excess of $25. After removing any

such property, the officer shall, if

possible, roll up the windows and lock

the doors and trunk. Any property so

removed shall be brought into the police

facility and appropriate entries and

returns made. Containers shall not be

opened [at this time]; however, they may

be sealed to insure the security of

their contents. No other inventory or

search of the vehicle shall be made at

this time.

[D. Procedure After 24 Hours. If,

within 24 hours of the time that the

prisoner was arrested, a person

authorized by the prisoner (or the

-48-

ae

prisoner himself, if released) does not

claim a vehicle which was classified as

prisoner's property and taken to a

police facility, a complete inventory of

its contents shall be made under Rule

607.]

‘ -49-

407.

APPENDIX B**

Vehicle Inventories

Whenever you are securing a vehicle

on the street (for example a vehicle

involved in an accident or one which a

person you arrested was driving) and you

discover valuable personal property in

it, you should ask the person who owns

the property what he wants done with

it. If the person who owns the property

is not available, you should remove it

from the vehicle and turn it over to the

duty supervisor when filling out your

report on the incident. In this case,

you should leave written notification in

**

Boston Police Criminal Investigative

Procedures: Search Warrants, Motor Vehicle

Searches and Searches Incident to Arrest,

February, 1978, p. 110 (emphasis supplied).

-50-

the vehicle describing what property was

removed and where and when it may be

claimed.

-51-